Planning and Infrastructure Bill

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[Lord Roborough (Con)]

My Lords, I will speak briefly to several amendments in this group concerning environmental delivery plans.

I start by thanking my noble friend Lord Lucas, both for introducing this group and for tabling Amendment 242B. This amendment seeks to ensure that the EDP process has time to bed in within uncontroversial areas, and that its further development is not rushed. As we have learned, EDPs are themselves controversial, so we are of course sympathetic to this amendment and to other noble Lords’ words on nutrient neutrality. Elsewhere, we have offered amendments that could immediately release 160,000 units of housing stock from Natural England advice, which is blocking those developments. Can EDPs deliver that? Can they release 160,000 units from this Natural England advice once the Act commences?

I thank the noble Lord, Lord Teverson, for tabling Amendments 271 and 272. These seek to ensure that, when preparing an EDP, Natural England must have regard to all the plans listed in Clause 58(2)(a) to (c) rather than only those it considers to be relevant. These are serious points, and I hope the Minister will reflect carefully on them in response. In light of these amendments, are the Government minded to clarify how Natural England is to weigh these existing plans?

I am also grateful to my noble friend Lord Lansley for Amendment 344, which would require plan-making authorities to notify Natural England when they allocate potential sites for development where an EDP would be needed. This strikes me as a completely sound and practical amendment which would help to ensure co-ordination between local planning and Natural England’s role.

I turn briefly on my noble friend Lord Swire’s amendment, kindly introduced by my noble friend Lady Coffey. I have to say that I am impressed by my noble friend’s ingenuity in returning to one of his favourite topics. I am not convinced that Natural England has the bandwidth for the existing initiatives in the Bill without adding further burdens to them.

To conclude, we look forward to hearing the Minister outline the Government’s own amendments in this group. They appear to be minor and technical, and we are grateful for the drafting corrections, particularly Amendment 346E. Clause 58 already sets out matters to which Natural England must have regard when preparing an EDP. This amendment would extend that duty to the amendment and revocation of EDPs by both Natural England and the Secretary of State. It would also add further matters to which they must have regard. It would be helpful to understand how these additional considerations are expected to operate in practice. We would welcome this clarification, and I hope the Minister can reassure the House that the Government’s approach will match the scale of the responsibilities being placed on Natural England.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, before I respond to the debate, I thank the noble Baroness, Lady Parminter, for her comments. I also remind noble Lords that our civil servants across all departments work extremely hard. They bring valuable support to Ministers, and it really is not appropriate to question their intellectual ability during a debate.

As we set out in Committee on Monday, the Government remain firmly of the view that, when it comes to development in the environment, we can do better than the status quo, which too often sees both sustainable housebuilding and nature recovery stall. Instead of environmental protections being seen as barriers to growth, we are determined to unlock a win-win for the economy and for nature, and that is why Part 3 is important.

Following the introduction of this Bill, we have taken seriously the concerns expressed by those who were not yet convinced that the provisions in Part 3 provided the necessary certainty that the nature restoration fund will deliver in practice the potential environmental benefits that it offers. So, with a view to ensuring that everyone has confidence that the nature restoration fund delivers those improved outcomes for nature that are at the core of the model, we have continued to engage with expert stakeholders. Having done so, the Government have developed a comprehensive set of amendments for consideration. Taken together, we are confident that the package will provide reassurance that the nature restoration fund will restore, not harm, nature, while at the same time ensuring that housebuilders benefit from the same streamlined process to discharge their environmental obligations and get Britain building.

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[Lord Lucas (Con)]

My Lords, I am very grateful to the Minister for her reply to my amendment. Would she be prepared for me to open a discussion with her officials on the subject of my amendment? We need to do something to increase developers’ understanding of what it will be like under the new regime. If we are to get development going, we need to have the confidence generated.

[Baroness Hayman of Ullock (Lab)]

Of course. To all noble Lords, I say that, between Committee and Report, my noble friend and I are very happy to sit down and discuss amendments or any concerns further with officials.

[Lord Lucas (Con)]

I am grateful for that, but I am not surprised; that has been the way the noble Baroness has conducted herself through all her time as a Minister.

I wanted to go back to one of my earlier amendments on biodiversity data. Since she has her colleague, the noble Baroness, Lady Taylor, sitting next to her, might she have a conversation about unblocking the flow of biodiversity data generated in the course of planning permissions and getting that through to the local environment record centres, so that it is available to become part of the scientific information, which Natural England can draw on in making an EDP? Her department, or parts of it, and Natural England are active in this area. I would really like to know that this is an area where the Government are determined to make progress.

I am encouraged by the Minister’s nodding. I beg leave to withdraw the amendment.

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[Baroness Young of Old Scone (Lab)]

My Lords, my Amendment 285AA is about the way in which the Secretary of State approves EDPs. As currently drafted, the Bill says:

“The Secretary of State may make the EDP”—


that is, approve it—

“only if the Secretary of State considers that the EDP passes the overall improvement test”.

The “overall improvement test” is the key test of whether an EDP is sufficient and should go ahead but the Bill does not make it clear on what basis the Secretary of State will make his consideration. If I understand it correctly, the Secretary of State who will do this part of the process is the Secretary of State at MHCLG and not Defra, unless I have misunderstood what the Minister has just said.

[Baroness Hayman of Ullock (Lab)]

I apologise. The noble Baroness had not misunderstood, but we have had further discussions and I clarified in the previous group that the Secretary of State referred to is the Secretary of State for Defra, unless there are good reasons for it to be otherwise.

[Baroness Young of Old Scone (Lab)]

I thank the Minister for her clarification. That is a bit of a relief, to be frank, because most MHCLG Secretaries of State are not appointed for their depth of ecological knowledge, nor indeed are the civil servants in that department.

However, that does not overcome the principal problem that the way it is drafted rather implies that it is based on the Secretary of State’s judgment and consideration, rather than the evidence. Existing environmental law is effective because it requires that, if an adverse effect on the integrity of an internationally important site cannot be avoided, then changes that would impact it would be consented to only where there are imperative reasons of “overriding public interest”. That is a technical term which is well-based in case law, and there is long-standing case law as to the evidence base required to demonstrate overriding public interest.

Clause 63 seems to make the new overall improvement test a much more subjective decision of the Secretary of State for Defra, in that it is about his or her consideration, and the test is passed solely on the basis of whether or not the Secretary of State considers that it is passed. Therefore, it is not a requirement in the Bill for the opinion to be underpinned by evidence. We understand that, frankly, it would be crazy for the Secretary of State to make some wild, unevidenced decision, but the way the Bill is currently framed means that the decision is unlikely to be legally challengeable if they did.

My amendment proposes deleting

“the Secretary of State considers that”,

which would remove the subjective element and, I hope, establish that the Secretary of State’s decision on the overall improvement test would be more about objectivity and evidence. It would give scope for the Secretary of State’s decision to be challenged in court if it is clearly flawed or runs contrary to the scientific evidence, whereas, at present, the drafting of the Bill places the Secretary of State’s judgment in primacy over the evidence.

I repeat that this is, thank goodness, going to be done by a Secretary of State who may have a sporting chance of knowing what they are talking about, but it would be good to hear reassurance from the Minister as to the basis of the evidence on which the Secretary of State will make the decision about the overall improvement test in subsections (3), (4) and (5) of Clause 60.

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[Lord Roborough (Con)]

My Lords, I shall start by introducing my Amendment 346DF and, in the interests of brevity, will avoid detailed comments on the other amendments in the group.

My amendment is, by its nature, probing. It would require the Secretary of State to report on the potential benefits of removing distance from the biodiversity metric when measuring the biodiversity value of registered off-site biodiversity gain under paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990. This is important because the current system rightly places a heavy weighting on proximity. My amendment does not necessarily fit so well in this group, but there was no sense in having a separate group for just one focused amendment with a specific request. It simply poses the question to the Government: if proximity carries limited weight in designing EDPs, why should it continue to carry so much weight in the BNG market? This risks handicapping the private market for these services versus EDPs.

Currently, developers pay far less for BNG and nutrient neutrality units when further afield than when local, which translates to lower prices per unit and lower incentives for landowners to develop BNG units. We on these Benches remain convinced that the proximity of the offsetting actions’ location to where the damage is being done remains an important principle, which we will defend. However, if the Government were to insist that this is not the case in the EDPs, this amendment would seek to protect the ability of private developers of BNG units to compete. There is an argument, which holds weight, that if mitigation actions cannot be done locally, further afield may be acceptable. But in that case, it holds that the choice should be made based on guidance and availability, not price.

I turn to the arguments raised in this group of amendments, which we support. We are proud of the work done in the Environment Act 2021 to enshrine the mitigation hierarchy in law through biodiversity net gain. It has taken some time to implement but now works better every day. Developers are increasingly comfortable with it. Supply of BNG units is increasing, providing valuable income to landowners and funding for environmental NGOs. Given that, it is hard to understand where the problem is in planning that Part 3 is trying to fix. Perhaps most importantly, nature restoration is already happening at increasing scale around the country through the current system. Why undermine it? By not protecting the mitigation hierarchy within the application to the nature restoration fund and the design of EDPs, the Bill continues to represent a regression in environmental law in this country. It also undermines the competitiveness of BNG developers in providing solutions for housing and infrastructure developers.

In conclusion, the amendments we have discussed today reflect a common desire to protect the mitigation hierarchy and ensure it is embedded into all aspects of the NRF and EDPs. I hope the Minister will support this and offer encouragement.

[Baroness Hayman of Ullock (Lab)]

I thank noble Lords for taking part in this debate on the mitigation hierarchy. I have listened carefully and very much recognise the concerns that are being raised. These amendments seek to add provisions that require Natural England and the Secretary of State to apply the mitigation hierarchy when considering whether to produce an EDP, and in its production and implementation. By introducing a more strategic approach to addressing the impact of development, the Bill deliberately provides an appropriate degree of flexibility to Natural England to design conservation measures to deliver improved outcomes for the environmental features that are subject to an EDP. The noble Lord, Lord Gascoigne, when he introduced his amendment, noted that the NPPF includes consideration of the mitigation hierarchy in respect of individual planning applications. I was not going to mention it, but because he did, I thought I had to.

As we have set out, the NRF is a strategic model. While I want to reassure noble Lords that the mitigation hierarchy lives in this model and is integral to the model we are trying to get across, it cannot be considered in the same way as an individual planning application. Again, I stress that the NPPF is a statutory model. You cannot just ignore it. It is part of the application process. So, we would expect Natural England to consider this throughout the process and use tools such as the ability to request planning conditions to avoid and reduce impact as key elements of an EDP. In preparing an EDP, Natural England will always be mindful of the benefits of avoiding impacts before they occur. Taking action locally which benefits the same protected feature that is being impacted by development will be the default under an EDP. This places a kind of ecological lock on the use of network measures, which can be used only in cases where it is clear that taking action elsewhere would be more beneficial to the environmental feature.

In addition, when making the EDP, the Secretary of State will have due regard to the environmental principles policy statement, in line with the Environment Act 2021. This will ensure that important principles, such as the precautionary principle and the rectification at source principle, are considered. Ultimately, the overall improvement test will require that each EDP demonstrates how the conservation measures will secure an environmental uplift that goes beyond the offsetting that is achieved under the current system.

Returning to Amendment 245, as I said, the principles are already incorporated into the existing provisions and further reinforced by the amendments we have tabled. As the noble Baroness, Lady Parminter, said, Natural England can request that planning conditions be imposed on development, ensuring that impacts are minimised. As I have explained, network measures can be implemented only when doing so would lead to greater improvement. The noble Baroness asked for future information. Let us get together before Report; I will get that information for her and share it with noble Lords.

Natural England will always consider the environmental principles when preparing an EDP, and the Secretary of State may make one only if it meets the overall improvement test. Therefore, the additional flexibility provided for by the nature restoration fund can be used only to deliver better outcomes for the environment.

I turn to Amendment 251 in the name of the noble Earl, Lord Russell, and Amendment 301 in the name of the noble Baroness, Lady Willis, who is not in her place. These amendments would require a developer to demonstrate that they have applied the mitigation hierarchy before Natural England can accept their request to use an EDP. The clear aim of the nature restoration fund is to deliver a win-win for both development and the environment. A fundamental element of delivering this is to reduce the amount of time and money spent on individual environmental assessments and refocus these efforts on strategic action to improve environmental outcomes at scale.

The EDP itself is required to consider the impact of relevant development on the environmental feature and propose appropriate measures to address and materially outweigh this impact. The plans will be underpinned by the best scientific evidence and will include actions to avoid impact, as well conservation measures to address and outweigh impact. As such, requiring developers to undertake individual assessments risks eroding the value of the EDP, adding costs to individual development, which we think would reduce the utility of relying on EDPs. Where an EDP is in place, the overall improvement test ensures that outcomes for the environment will be better than the existing system, so it is vital that we embrace the opportunity to streamline the process in order to deliver this win-win.

The noble Earl, Lord Russell, tabled Amendment 275, which seeks to require that Natural England may decide to prepare an EDP for a protected feature only if two conditions are met: first, that Natural England has followed the mitigation hierarchy; and secondly, that the EDP would contribute to a significant environmental improvement in the conservation status of the relevant environmental feature at an ecologically appropriate scale. I have just addressed the first condition, so I will focus on the second.

The existing provisions in the Bill already require the Secretary of State to consider whether the overall improvement test is met once a draft EDP has been prepared and presented. Requiring Natural England to consider that same test at an earlier stage would not be possible because neither the detail of the proposed conservation measures nor the environmental impact of the development it is intended to address would be known at that stage. We think that the correct point to apply the overall improvement test will be after the EDP is drafted, not before.

The amendment also proposes a modification to the overall improvement test to require that conservation measures significantly and measurably outweigh the environmental impact of development. This was addressed previously, so I will not repeat it here, except to say that the Bill requires that conservation measures must address the environmental impact of development and, additionally, contribute to an overall improvement in the conservation status. We have clarified that with the amendments we have tabled.

Turning to Amendment 256ZA, tabled by my noble friend Lady Young, the Government’s amendments to Part 3 make it clear that network measures may be taken forward only when Natural England can set out how the approach will make a greater contribution to the improvement of the conservation status of the feature than an on-site measure. We are clear that the flexibilities will not come at the expense of action to avoid impact, and the Bill provides powers to address such actions and secure that they are taken through the use of planning conditions. There is also the opportunity to scrutinise the proposed conservation measures, including actions proposed to avoid impact, during the consultation on each EDP. The Secretary of State will also have due regard to the environmental principles policy statement, and see that other important principles are considered.

Turning to Amendment 340, tabled by the noble Baroness, Lady Grender, the overall improvement test is central to the nature restoration fund. I have gone into some detail about how that is supposed to work, but the proposed requirement to apply the mitigation hierarchy rigidly would restrict an EDP’s ability to meet the overall improvement test strategically. As I said, an EDP cannot be made unless the Secretary of State is satisfied that it will meet this test. Any flexibility in applying the mitigation hierarchy should be seen through this lens. The nature restoration fund does in limited circumstances allow Natural England to propose conservation measures which benefit the environmental feature in a different location.

Turning to irreplaceable habitats, the Bill does not amend or disapply the NPPF. Therefore, the existing policies remain unchanged. An EDP could be applied to an irreplaceable habitat only where it was also a feature of a protected site. Even then, an EDP could not allow for the loss of irreplaceable habitats, as it would simply not be possible to satisfy the overall improvements test in these circumstances. Finally, it is not clear what the proposed requirement to consider enhancing biodiversity would add, as the Bill is clear that an overall improvement must be achieved in relation to the protected feature to which the EDP relates.

Finally, on Amendment 346DF, in the name of the noble Lord, Lord Roborough, we have recently concluded a consultation on improving the implementation of BNG for minor, medium and brownfield development. Among the options is a proposal to streamline the BNG metric process. We might be interested to pick this up and discuss it further, because the Government are currently considering their response, and we will be publishing our outcomes in due course. New legislation requiring government to lay a report on this matter is therefore not necessary at this stage, so I hope the noble Lord will withdraw his amendment.

This has been a really important debate. It has raised a number of issues which I am aware that noble Lords would like to discuss further, and this is something we should specifically pick up in discussions ahead of Report. With these explanations, I kindly ask noble Lords not to press their amendments.

[Lord Gascoigne (Con)]

I am grateful to all noble Lords who spoke to that group, not least the Minister. I apologise for incorrectly prejudging what I thought she would say—I obviously got it completely wrong, and I apologise.

The noble Earl, Lord Russell, got it right when he said that this group and the previous one are the nub of the problems with the EDP Part 3. I am not saying there are other things, but this goes to the heart of how we try and make the Bill a win-win for both development and nature. I do not want to dwell too long. I am grateful that the Minister said that we will come back to that. It is worth our coalescing and having another shot at it, if we may, but, with that, I beg leave to withdraw my amendment.

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Moved by

[Baroness Hayman of Ullock]

245A: Clause 55, page 92, line 7, at end insert—
“(3A) An EDP must set out the anticipated sequencing of the implementation of the conservation measures by reference to the development to which the EDP applies.”Member's explanatory statement
This amendment would require Natural England to include in an EDP an indication of the sequencing of the conservation measures vis-a-vis the development.

[Baroness Hayman of Ullock (Lab)]

My Lords, this group has government and non-government amendments, so I will introduce the government amendments at this stage and then respond to further amendments at the end of the debate, once I have heard what people have to say.

The further government amendments speak directly to the matters raised by environmental groups and the Office for Environmental Protection, which, along with those in other groups, present a comprehensive package that addresses these issues, as well as picking up wider matters raised during parliamentary debates on how the nature restoration fund will operate.

Government Amendment 245A will require Natural England to set out the anticipated sequencing of conservation measures set against the development expected to come forward under the EDP. This amendment provides transparency as to when conservation measures are proposed to come forward, to address the impact of development. By including the proposed sequencing of conservation measures in the EDP, this will provide further assurance that EDPs will not lead to open-ended or irreversible impacts from development and will allow communities and developers to see how environmental benefits will be delivered over the EDP period.

Although back-up measures provide greater certainty of outcome, we also propose to reframe the duty on the Secretary of State to deliver remedial action in the unlikely event that the conservation measures and back-up conservation measures do not deliver as originally foreseen. Government Amendment 295A creates an explicit requirement for midpoint, endpoint and revocation reports to set out whether the EDP is still likely to pass, or has passed, the overall improvement test.

Should the endpoint report contain an assessment that the conservation measures are not likely to pass or have not passed the overall improvement test, the Secretary of State will be under a duty to take proportionate action to address any shortfall in environmental outcomes. These measures will need to be set out in a report containing a clear assessment of the effect the Secretary of State expects those actions to have. The Secretary of State will then also need to review the effect of these measures two years later.

These new reporting requirements will remove the need for Natural England to conduct an annual assessment of the effectiveness of all EDPs in force. That is further addressed by government Amendment 325 C. I hope that is informative for noble Lords and I look forward to responding to the rest of the debate.

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[Lord Cromwell (CB)]

I will speak very briefly in support of Amendment 293 on the annual report. Put simply, if the department is not required to produce an annual report, will it do so and, if not, how is Parliament to be made aware of progress or difficulties, unless, perhaps by chance, a Select Committee calls in Natural England to tell it?

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank noble Lords for introducing their amendments and for the wider debate. I will speak first to Amendment 293, tabled by the noble Lord, Lord Roborough. That requires Natural England to produce annual reports on EDPs rather than just at the mid- and endpoint of an EDP’s lifespan. We think that our Amendment 325C, on the new reporting requirements, partly speaks to this issue. Our concern is that Amendment 293 would bring a disproportionate burden, given the strengthened reporting requirements that we have introduced in government Amendment 295A.

The noble Lord asked whether we were happy with these levels of reporting. It is important that the frequency of reporting strikes the right balance. Natural England will still be carrying out appropriate monitoring throughout the EDP’s life cycle and will retain the power to publish a report at any time. Similarly, requiring EDPs to include an assessment of their impact on the local economy and community in the relevant area, as is proposed by the noble Lord’s Amendment 295, would add a significant burden to the reporting requirements for EDPs. Of course, communities will be involved during the consultation process; I wonder whether it might be an idea to circulate the consultation guidelines to noble Lords, because obviously the consultation process is an important part of what we are proposing.

On Amendment 285A, I hope I can satisfy the noble Lord, Lord Randall, that requiring a biodiversity survey of an EDP area is already accommodated in the existing drafting to an extent that such a survey is not necessary. I was pleased to hear about his love of birds. He may be interested to know that I am a member of the RSPB, so perhaps I could be described as a minor “birdo” alongside him. Clause 57 already requires an EDP to describe the conservation status of each identified environmental feature at the EDP start date, setting out the relevant baseline. In doing so, as is the case for all duties carried out in relation to Part 3, Natural England will be required to take account of the best available scientific evidence. It is also important to remember that these are targeted plans to address the impact of development on a specific environmental feature. Requiring a full survey of all the biodiversity in an EDP area risks adding cost and burden that go far beyond what is required to consider the impact of development on the environmental feature.

Amendment 258C, tabled by my noble friend Lady Young, would add a series of additional requirements for Natural England when preparing an EDP. I know from discussions with my noble friend that she wishes to ensure that the NRF is as rigorous as possible while ensuring that it is an effective tool to support development to come forward. Specifically in respect of the supporting evidence base for EDPs and the consideration of the environmental principles, I assure my noble friend that these matters are already captured through the drafting and amplified by the Government’s amendments to Part 3.

My noble friend also asked about further evidence collection. Where it is necessary to gather additional ecological evidence to prepare and monitor an EDP, the associated costs may be recovered through developer contributions. Clause 57 already requires an EDP to set out why conservation measures are considered appropriate, and new Clause 87A(2) requires the Secretary of State and Natural England to take account of the best available scientific evidence when exercising functions in relation to EDPs. Clause 57 also requires an EDP to describe the conservation status of each identified environmental feature, again with regard to the best available scientific evidence. This means that there is already a requirement for Natural England to ensure that there is a solid base of scientific evidence, including adequate baseline data, to inform the preparation of the EDP. My noble friend asked why Natural England is required to have regard to environmental principles as it refers to Ministers. I reiterate that the Environment Act requires the Secretary of State to take them into account when making their decision to approve or make an EDP.

I recognise the desire to ensure that EDPs deliver as much for the environment as possible, but we must also ensure that we are not asking developers to address more than is reasonable or that we are allowing EDPs to replace the important wider programme of work which is under way to protect important sites and species as part of our ambitions in the overall environmental improvement plan. We have to get that balance right. We have to make sure that the environment supports development and at the same time does not stop important development where we need it.

The noble Lord, Lord Lucas, asked quite a lot of questions about the baseline and other things. It is probably helpful if I put my answers in writing to the noble Lord. I hope that with these explanations and assurances, noble Lords will not press their amendments. I beg to move.

Amendment 245A agreed.

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Moved by

[Baroness Hayman of Ullock]

246A: Clause 55, page 92, line 9, leave out “, if Natural England considers it appropriate,”
Member’s explanatory statement
This amendment is consequential on my amendment to clause 55 inserting a new subsection (4A).

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Moved by

[Baroness Hayman of Ullock]

247A: Clause 55, page 92, line 12, at end insert—
“(4A) But an EDP may include conservation measures of the type mentioned in subsection (4) only if Natural England considers that such measures would make a greater contribution to the improvement of the conservation status of the feature than measures that address the environmental impact of development on the feature at the protected site itself.”Member’s explanatory statement
The effect of this amendment would be that network conservation measures can only be included in an EDP if Natural England considers that they will be more effective, in contributing to the improvement of the conservation status of the affected feature, than onsite measures.