Planning and Infrastructure Bill

Baroness Grender Excerpts

Report stage
Wednesday 29th October 2025 Lords Chamber

[Lord Roborough (Con)]

My Lords, I will speak in support of my noble friend Lord Lansley’s Amendments 158A and 164A, which seek to understand why the nature restoration levy may be mandatory. That would appear to go against the sense of the whole of Part 3, which is supposed to offer an alternative to the existing system of dealing with environmental planning matters.

If Natural England has the power to make the NRL mandatory, what is to stop it from exercising that power unfettered and in all cases? The solution to not getting reassurance on these amendments is to take out this power entirely, which is the effect of my own Amendment 164. My noble friend made a point that is worth the Minister considering, so can she reassure the House that those conditions could be tightened up and made more explicit, in order to inspire more confidence? I hope that she can reassure the House, and I will follow on from her response in my approach to my Amendment 164.

[Baroness Grender (LD)]

My Lords, I will speak very briefly, just in case there is a move to test the opinion of the House on Amendment 164 in the name of the noble Lord, Lord Roborough. While we understand the intent behind the proposal, we on these Benches are not persuaded that removing the provision for mandatory payments to the nature restoration fund would be a step in the right direction. If developers choose to proceed through an EDP route, it is only right that they contribute to the environmental mitigation and restoration measures that make those plans effective. Allowing them to opt out of such payments risks undermining the consistency and fairness of the system and could weaken the overall purpose of the fund to ensure that development contributes positively to nature recovery. Therefore, we approach the amendment, and a possible vote on it, with considerable caution.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)]

My Lords, this group of amendments seeks to examine the circumstances in which an environmental delivery plan, and the associated levy payment, could be mandatory. Amendment 164, in the name of the noble Lord, Lord Roborough, would wholly remove the option for an EDP to be mandatory. Amendment 164A, in the name of the noble Lord, Lord Langsley, would significantly restrict the circumstances in which an EDP could be made mandatory. I assure noble Lords, as I previously stressed in Committee debates, that the scenario of mandatory EDPs and levy payments will arise only in limited, exceptional circumstances. I will explain that in a bit more detail—the noble Lord, Lord Lansley, suggested that I would say that again—to try to reassure noble Lords.

A key purpose of the NRF is to offer developers an alternative way to meet their environmental obligations, so it is not our intention to make EDPs the only route available. As I have set out, Natural England is able to recommend that an EDP be mandatory only where it believes this is necessary, and it would be required to set out its reasoning within that EDP. That would form part of the consultation on that EDP—allowing developers and others to support or oppose this approach —and the responses to that consultation would of course form part of the Secretary of State’s consideration before making that EDP.

We consider that these steps represent a significant consultative and democratic safeguard. However, we also recognise that there is interest in what circumstances the Government consider may be necessary for an EDP to be mandatory rather than optional. We consider that there are two broad possibilities, the first of which is in instances where the ability to make an EDP mandatory provides a crucial assurance to Natural England and the taxpayer. For example, were Natural England to work with the developer and invest significant resource into preparing a bespoke EDP to address the impacts of a single large development such as a piece of energy infrastructure, that EDP is not likely to be usable by anyone else. If the developer or promoter subsequently chose to discharge their environmental obligations via a different route, that cost of developing the EDP would be wasted. It is important, therefore, to have a mechanism to provide certainty that an EDP will be used in such a scenario.

Secondly, if an EDP could only secure the right conservation measures to pass the overall improvement test and if all developers in scope paid in, but consultation showed that a small minority of developers did not wish to do so, it may be reasonable for Natural England to recommend and for the Secretary of State to agree that the EDP should be mandatory. A consideration of the overall benefits to growth and development would be properly in the gift of the Secretary of State in this scenario.

It is also important to note that the Bill contains a duty on the Secretary of State in drafting the levy regulations to ensure that even where payment of the levy is mandatory, it does not make development economically unviable, as this would not deliver the win-win the NRF is seeking to achieve.

Noble Lords will have the opportunity to scrutinise these regulations. They are subject to the affirmative parliamentary procedure, which will enable stakeholders to have the opportunity to comment on regulations before they are made. In developing the regulations, we will, of course, work closely with stakeholders to ensure the effective operation of the levy system. Given this reassurance as to the limited circumstances where the levy could be mandatory, I hope that noble Lords will not press their amendments.

Amendment 158A, also in the name of the noble Lord, Lord Lansley, seeks to limit circumstances where an EDP could be amended so as to make payment of the levy mandatory. I assure the noble Lord that while we do not envisage Natural England amending an EDP to make payment of the levy mandatory, the Bill already provides that an EDP could be amended in this way. Such a scenario would be very unlikely to materialise, because the Secretary of State would need to consider whether making an EDP mandatory meets the high legal bar of this being necessary. However, if it did, the Bill as drafted already allows for this to happen, crucially, following further public consultation and, of course, the consent of the Secretary of State. With this reassurance, I hope the noble Lord will feel able to withdraw his amendment.

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[Lord Fuller (Con)]

But I am concerned, listening to this, because we will be letting the water undertakers—the sewage firms—off the hook if we are not careful. I say to my noble friend that I have looked carefully at the amendments. This whole Bill is about speeding up development; we have to get these homes going. It seems to me that we are potentially having a perverse incentive in allowing the sewage treatment firms to have a veto over new development.

The sewage treatment works and the operators—the water undertakers—are going to be the tail that wags the dog. If they say, “We haven’t got enough capacity, therefore you can’t connect”, no new homes will be built at all. I am really concerned about this. I went to the world heritage site at Iona in Scotland and its sewage treatment works were at capacity. It ended up with the visitor centre being forced to have its own package system that drained straight through the public areas, making it worse. In Norfolk, Anglian Water is saying that its sewage treatment plants are at capacity and it cannot contemplate any new homes. It is the blocker: 40,000 new homes in the greater Norwich area, as well as other areas, are now at risk. So far, so much for speeding development. This is going to slow it down, because it gives them a get-out—a perverse incentive not to invest in what they should be doing, while taking the money from business rates and so forth.

In aggregate, we are going to end up with more polluting package systems rather than connecting. That is no good for places such as Poringland, in my own area, where there is clay and the drainage is really poor. This is really important because by promoting a multiplicity of much smaller package systems, rather than incentivising the main sewerage providers to invest, we are going to avoid scale—and we need the larger, better-structured sewage treatment works brought up to scratch, because it is only then that they would address the phosphate problem. Phosphate is very difficult to do in a package system because there are harsh chemicals, so you have to wear face masks, gloves and all the health and safety paraphernalia. It all has to be carefully handled. This is where we get the economy of scale, which is what we should be encouraging.

Another point is that if we are to allow the sewage companies to say, “We think we’re full now, so you can’t have any more”, we will end up with more small package schemes. There is the smell. They are also unreliable and expensive to maintain. It is difficult to get them adopted.

I am really concerned about Amendment 198. I do not want to put the black spot on it entirely, but it needs to be improved. We would end up with a perverse situation in which there was a lack of capacity and we incentivised the sewage treatment companies and water companies to take it easy, rather than go the extra mile. This is not some theoretical risk. In places in Norfolk such as Heacham, Docking, Snettisham, Horsford, Brancaster and the entirety of the greater Norwich area, Anglian Water is holding up the delivery of tens of thousands of houses.

This is an infrastructure Bill, so there would be unintended consequences. While the amendment is well meaning—I accept everything the noble Baroness said about what is in the Water Act, and I accept that for smaller schemes this is it—if we are to have an infrastructure Bill, we need to remove the excuses for the sewage treatment companies and the water undertakings not to invest in that most basic infrastructure. It is as if we are going back to the days before Chamberlain in Birmingham and Bazalgette here on the Embankment in London. We spent ages on the Water Bill, and there is widespread concern about sewage discharge, but sewage discharges will be solved only if we hold the water companies’ feet to the flames and get them to invest. It is a real problem if they just say, “Well, it’s a bit difficult. We’re not going to invest, and therefore you can’t build houses and can’t get the economy moving”.

In summary, we need to make sure that we take into account that SUDS has a role for smaller schemes, but we should not allow the pressure to be taken off the large companies for the big schemes—the schemes that will deliver the homes this nation needs by getting roofs over people’s heads. Otherwise, we will never meet the targets. As it is, in the Times yesterday there were questions about whether we will even get half way to delivering the housing targets, let alone all the way.

[Baroness Grender (LD)]

I will speak briefly to this group. I applaud the noble Baroness, Lady McIntosh, for her resilience in the face of some opposition from her own Benches.

Amendment 197 seeks to end the automatic right for developers to connect surface water from new homes to the public sewerage system, regardless of capacity, and would instead provide a framework for the approval and adoption of sustainable drainage systems.

Amendment 198, also in the name of the noble Baroness, Lady McIntosh, would go further by linking the right to connect to compliance with the Government’s newly introduced national standards for sustainable drainage systems, creating a stronger incentive for developers to follow this guidance, in advance of full implementation of Schedule 3 to the Flood and Water Management Act 2010.

I believe that some of this was developed by the All-Party Group on Flooding and Flooded Communities, among others, and we certainly support what the noble Baroness is attempting to do with these amendments. Managing surface water is a huge challenge. It is such an irony that we have the problem of lots of surface water, but we also do not have enough water.

Protecting water quality, supporting biodiversity and reducing flood risk are really important priorities. We see the merits of these amendments. While they are not the only steps needed to achieve a fully resilient water system, they represent a constructive approach to improving drainage management in particular, and to encouraging developers to take responsibility for sustainable practices.

[Lord Blencathra (Con)]

My Lords, I thank my noble friend for tabling her amendments in this group. I know that the whole House respects her for her commitment to the issue of sustainable drainage, and I pay tribute to her for her persistence in raising this particular matter, because it is about time that we made some progress on it.

Our water system is put under pressure when developments are built out and connected up, and my noble friend is right to raise this. Can the Minister please take this opportunity to set out the Government’s ongoing work on delivering a sustainable future for our water systems? We would also be interested to hear what active steps the department is taking to engage with the development sector, including small and medium-sized developers, to ensure that existing non-statutory standards for sustainable drainage have been implemented.

My noble friends have mentioned 2010. I can beat that. I think it was in 1992 that, as Environment Minister, I was shown a revolutionary new system whereby the downpipes from our houses are connected to a soakaway and a system of seepage pipes about a foot underground, where the water then slowly leaked back into the soil. For big commercial car parks, the seepage pipes were put down a metre, so they were not crushed.

Those systems were in development then, and I said, “This is a jolly good idea, we should do it”, but the word was, “Oh no, Minister, it is not quite the right time to do it yet”. So I would be interested to hear what the Minister can say about that particular area. What development work is going on for seepage systems in ordinary domestic houses? We have millions of gallons of pure raindrops falling on our roofs, we put it into the sewerage system and then the water companies spend millions of pounds taking out the clean water again. Seepage systems must be the way to go in the near future.

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Moved by

[Baroness Grender]

199: After Clause 87, insert the following new Clause—
“Heritage tree preservation orders(1) A local planning authority may make a heritage tree preservation order in respect of a heritage tree.(2) The Secretary of State must make provision by regulations for heritage tree preservation orders, which must include provision— (a) for a heritage tree to have all the protections afforded to a tree by a tree preservation order under section 198 of the Town and Country Planning Act 1990 (power to make tree preservation orders);(b) requiring the owner of a heritage tree, or any other occupier of the land where the tree stands, to advertise appropriately its status as such, and the penalties for harming it, to persons approaching the tree or planning activities in its vicinity;(c) enabling the responsible planning authority, Natural England or the Secretary of State to order the owner of a heritage tree or any other occupier of the land where the tree stands to take specified reasonable steps to maintain and protect the tree and, if the owner or occupier does not take such steps in reasonable time, to take such steps itself and to recover the reasonable cost of doing so from the owner or occupier;(d) for the responsible planning authority, Natural England, the Secretary of State or another prescribed responsible body to enter into an agreement with the owner or occupier about the care and preservation of the heritage tree (a “heritage tree partnership agreement”), including about costs;(e) for additional or higher penalties for breach of a heritage tree preservation order.(3) The Secretary of State must make provision for the creation, publication and maintenance of a register of heritage trees in respect of which heritage tree preservation orders have been made.(4) For the purposes of this section, “heritage tree” means a tree listed as such by Natural England on grounds of exceptional historic, landscape, cultural or ecologic importance.(5) Natural England must create, publish and maintain a list of heritage trees in England for the purposes of this section.”Member’s explanatory statement
This new Clause provides for the protection of heritage trees.

[Baroness Grender (LD)]

My Lords, Amendment 199 is about heritage trees, and I thank everyone who has stayed for this debate. A special thank you goes to the noble Baroness, Lady Young of Old Scone, who has worked on this for far longer than me.

The existing mechanisms for tree preservation prove consistently inadequate when confronted by development pressure. To halt the continual attrition of irreplaceable ecological and historic assets, we must introduce specific mandatory, statutory safeguards. I thank the noble Baroness, Lady Bennett, for also signing Amendment 199, which achieves this by empowering local planning authorities to make heritage tree preservation orders: HTPOs. A heritage tree is precisely defined as one listed by Natural England based on its exceptional historic, landscape, cultural or ecological importance. They are exceptional—not just any old tree in somebody’s back garden.

Natural England is explicitly tasked with creating, publishing and maintaining this register of heritage trees in England. The measure would guarantee that these assets were afforded all the protections of a standard TPO but mandate significantly more rigorous enforcement and proactive care. Under it, the Secretary of State must make regulations specifying that breaches of an HTPO incur additional or higher penalties. Crucially, the system would move beyond reactive enforcement; the regulations must specifically enable the responsible authority, the planning authority, Natural England or the Secretary of State to order the owner or occupier to take specified, reasonable steps to maintain and protect the tree. If the owner failed to comply within a reasonable timeframe, the authority could execute the work itself and recover the reasonable cost.

This proposal would ensure that these vital historic assets were kept for future generations. It would be financially enforceable and remove uncertainty. Furthermore, transparency would be mandatory: owners must publicly advertise the tree’s status and penalties for harming it in the vicinity. The provision also encourages collaboration through heritage tree partnership agreements between the responsible body and the owner concerning care and costs.

The mechanisms within this amendment would deliver the focused legal protection required for irreplaceable features, moving accountability from discretionary planning guidance to a mandatory framework of enforcement and proactive conservation of our vital heritage trees. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, it would be exceptional if I did not support this amendment, in that it takes the provisions of my Private Member’s Bill and puts them into the amendment—so it would be a bit two-faced of me if I did not support it.

The noble Baroness, Lady Grender, has laid out clearly what the issue is. It is a very important issue in the public domain. We saw the outpourings that happened at the Sycamore Gap, and we see every year in the Tree of the Year competition just how many people exert themselves to vote for their favourite heritage tree. We have the beginnings of a register of these trees already in existence. I believe that my optimism, which was raised when the Government commissioned the Tree Council to put forward a report on what should happen, deserves a bit of encouragement, because, as yet, we have not had a very satisfactory response to the Tree Council’s research.

In Committee, I summarised the Government’s position as being that they felt that by saying that these trees were irreplaceable habitats was simply sufficient—but it is clearly not, as they are increasingly being damaged either by demolition or by poor management, so being called an irreplaceable habitat is not having any impact whatever. The second worry that I had in Committee was that, although the Tree Council had come forward with recommendations, it was clear that the Government were not planning to do very much as a result of them. It would be good to hear from the Minister tonight that, with this having been reflected on, there has been a change of heart, and I look forward to the Minister’s response.

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[Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)]

I thank noble Lords for the debate and the noble Baroness for moving this amendment. Obviously, trees and the natural environment are very important to all of us, especially the Government. Trees offer profound environmental and societal benefits; they are instrumental in our efforts to mitigate and adapt to climate change, they support human well-being, and they provide important habitats for wildlife. We have considered the amendment proposed by the noble Baroness, which seeks to establish a new category of “heritage trees”—those of exceptional historic, landscape, cultural or ecological significance—and give them additional statutory protection.

As mentioned in previous debates, the tree preservation order system remains a vital mechanism for safeguarding trees and woodlands in England. Local authorities are already expected to consider the historic, cultural and ecological value of trees when making such orders. Local planning authorities are required to notify relevant parties when an order is made, and they are empowered to encourage good tree management, particularly in the context of making planning decisions. Enforcement powers are available to local officers and it is a criminal offence to cut down, uproot, wilfully damage or top or lop so as to destroy a protected tree without written consent from the authority.

We also recognise the value of trees in planning policy as a core component of natural capital. It is our position that trees should be incorporated into new developments wherever possible, and that existing trees should be retained. Furthermore, development that would result in the loss or deterioration of ancient woodland, or ancient or veteran trees, should be refused unless there are wholly exceptional reasons and a suitable compensation strategy exists.

Given these existing provisions, the amendment does not, in our view, offer sufficient additional protection to justify its implementation. The creation of a new category of heritage trees risks introducing confusion and placing an additional burden on both Natural England and local authorities, without delivering commensurate benefits.

In light of these considerations, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Grender (LD)]

My Lords, I thank the Minister for the response. I will not be testing the opinion of the House, because I have a sense of clarity as to what the outcome would be right now. However, I do feel that there is a need to push for greater rigour and content within a Bill of this nature, and we will look to see whether there is further work that we can do to perhaps get it into a nature Bill in the future. That said, I beg leave to withdraw my amendment.

Amendment 199 withdrawn.