Planning and Infrastructure Bill

Baroness Taylor of Stevenage Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

If we are to build public confidence in this framework, the results must be visible and robust. This is not merely about regulatory compliance. These amendments seek to ensure the delivery of lasting improvements to our natural environment.

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

My Lords, this group includes government amendments to the overall improvement test that are part of our comprehensive package of amendments to ensure that everyone can have confidence that the nature restoration fund will deliver the improved outcomes for nature that are at the heart of this model and which I know that many noble Lords fully support. The Government have always been clear that the overall improvement test is one of the key environmental safeguards in the new system. As such, it is vital that there is confidence in its operation.

Our amendments remove any risk of ambiguity about the test’s operation by making it clear that the Secretary of State can approve an EDP only where the effect of the conservation measures will materially outweigh the negative effect of development on the conservation status of each identified environmental feature. This provides further assurance for communities and developers that measures will not only be delivered but that they will lead to a material improvement for the relevant environmental feature. The noble Baroness, Lady Coffey, referred to the government amendments as being “cleverly written”. I thank her for those comments on behalf of our civil servants. I am very grateful for the intellectual capacity of our civil servants.

To further support communities and to assist the Secretary of State when deciding whether to approve an EDP, government Amendment 256B adds a requirement for Natural England to set out its view on how the conservation measures will enable the EDP to pass the overall improvement test. The amendments also make a series of minor legislative fixes that are necessary for the correct operation of the legislation following the substantive government amendments. These are important clarifications that put beyond doubt how the overall improvement test will operate.

Turning to the non-government amendments, I welcome the comments from the noble Baroness, Lady Grender, about the importance of providing clarity in the planning system. That benefits not only developers but the communities and planners who have to operate the system. Many of the non-government amendments relate to the overall improvement test; for example, seeking to insert words such as “significant” to increase the amount by which the positive impacts of conservation measures must outweigh the negative impacts of development.

I suggest to noble Lords that a material improvement, as required by the government amendment, is more appropriate. It captures the need to secure improvement without putting an undue burden on the developer to contribute significantly more than their fair share to address the impact of development. Similarly, replacing the word “outweigh” with “demonstrate a net gain”, as proposed by Amendment 288, tabled by the noble Earl, Lord Caithness, risks drawing comparisons to a different and unrelated planning policy, the biodiversity net gain policy.

Amendment 289, tabled by the noble Lord, Lord Lansley, would introduce a duty on the Secretary of State to specify whether an EDP relies on back-up conservation measures that are not expected to be used to pass the overall improvement test. I seek to assure the noble Lord that EDPs will always need to be capable of passing the test without relying on back-up measures, as back-up measures are, by definition, those that are not expected to be needed. With this explanation, I hope that the noble Lord agrees that these amendments demonstrate the Government’s commitment to getting this right. We hope that, with these amendments, stakeholders and parliamentarians will work with the Government as we shift our focus to on-the-ground delivery—driving nature recovery, while supporting the delivery of the homes and infra- structure that we need.

Amendment 285AA, tabled by noble friend Lady Young, would amend the overall improvement test and remove the consideration of the Secretary of State from the test. The overall improvement test is inherently forward-looking, given that an EDP may be in place for up to 10 years in order to deliver the necessary conservation measures to secure the required improvement in the conservation status of the relevant environmental feature. When deciding on whether to make an EDP, the Secretary of State will have before them: the EDP itself, for which the best available scientific evidence is used; the view of Natural England as to whether the conservation measures are sufficient to meet the overall improvement test; and the responses from the public consultation. Armed with this information and with the power to request further information, the Secretary of State will be able to make a reasoned decision as to whether to make an EDP. I point out to the noble Lord, Lord Gascoigne, that that process already includes consultation. Consultation is part of the EDP process.

We note that none of us has a crystal ball—it would be lovely if we did, as then we could probably go 80 years ahead. That is why the Bill includes a number of safeguards to ensure that the overall improvement test will be met. I know that this will have been touched on previously, but it is worth restating the important role that ongoing monitoring will play in ensuring conservation measures perform as expected and, if they do not, the Government’s amendment requires that back-up conservation measures will be deployed. If, despite all these safeguards, the EDP falls short of the expected outcome, it will be the responsibility of the Secretary of State to take forward any remedial action to make sure that the overall improvement is delivered.

It is also worth highlighting the government amendments requiring Natural England to set out the proposed sequencing of measures against the scale of development under the EDP. As well as the clarification brought, both Natural England and the Secretary of State will deploy the best available scientific evidence throughout the EDP process. Removing the consideration of the Secretary of State from the overall improvement test, as proposed by this amendment, would require EDPs to replicate the site-by-site approach, which simply is not appropriate or necessary under this new strategic model with the aforementioned safeguards in place.

The noble Lord, Lord Lansley, referred to the comments about the Secretary of State this morning. He is quite right to say that it is not specified in the Bill. I do not believe that any Bill ever specifies which Secretary of State, because—as we all know—things can change. We hope that, by providing some clarity to the Committee this morning, this will help Members’ understanding of where we are. I hope that, with that explanation, my noble friend feels able not to press her amendment.

I turn to the amendments tabled by the noble Lord, Lord Randall, to which he spoke with incredible clarity and briefness, for which I thank him. The amendments propose to replace the overall improvement test with an evidence-based improvement test, as well as introducing further requirements connected to this revised test. The Government are in complete agreement with the noble Lord, but the quality of evidence is paramount when the Secretary of State is considering whether an EDP should be made. I hope, therefore, that the noble Lord welcomes the government amendments, as I think that they speak to what is at the heart of his amendments.

As I have set out, the government amendments to the overall improvement test remove any risk of ambiguity by making it clear that the Secretary of State can approve an EDP only where the effect of the conservation measures will materially outweigh the negative effect of development on the conservation status of each identified environmental feature. The Secretary of State would be required to take into account that best scientific evidence when undertaking all activities related to Part 3, including when considering the overall improvement test.

However, it must be recognised that the Secretary of State will make their determination before any EDP is in effect and conservation measures are in place. While EDPs will be based on the best available scientific evidence, there is an acknowledged need to consider the as yet unknown impact of these measures. This is inherent in taking the strategic, longer-term approach and it is why we have included provision for back-up measures to be deployed if monitoring shows that the primary conservation measures are failing to deliver as expected. This provision provides assurance that, were the primary conservation measures not to perform as expected, further measures would be deployed to ensure that the EDP met the overall improvement test.

With these amendments, we are confident that the overall improvement test is fit for purpose, so would not want to amend the test in the way proposed by these amendments. In addition, the associated amendment requiring the Secretary of State to carry out further consultation risks adding further process because, as I said, those bodies will already have had an opportunity to express their views. Moreover, Natural England is required to include in the EDP its views as to how the measures proposed enable the EDP to meet the overall improvement test. With these explanations, I hope that noble Lords will feel able not to press their amendments.

Amendment 290, tabled by the noble Baroness, Lady Bennett, would amend the overall improvement test and reintroduce much of the existing habitats regulations. It might be helpful to quote from the letter. I know that it only went out this morning. My noble friend Lady Hayman and I tried to get it out earlier, but your Lordships know how these things work. I repeat these paragraphs from the letter:

“We recognise that many Noble Lords have expressed concerns related to the application of the NRF model to irreplaceable habitats and rare species. We wish to be absolutely clear that both the intent and legal effect of the overall improvement test, and associated safeguards, is to prevent the inappropriate use of EDPs where an environmental feature would suffer irreversible harm or harm that could not be outweighed by the EDP end date. This means that an EDP could not allow action to be taken that resulted in loss or irreparable harm to an irreplaceable habitat, as this would by definition be incapable of passing the overall improvement test.


We also note that the National Planning Policy Framework … includes a strong presumption against permitting development which would harm irreplaceable habitats. These protections in the NPPF are not changing.”


Before turning to the individual elements of the amendment, I remind noble Lords that the current system is, at best, maintaining an unacceptable environmental status quo. That is why we are proposing the NRF, which provides an alternative way to discharge environmental obligations that moves us from simply offsetting impact to actually improving the conservation status of the relevant environmental feature. In providing an alternative, the NRF must establish a new framework for decision-making that aligns with this strategic, outcomes-focused approach. This framework has been the subject of much debate, but we are confident that, with the proposed government amendments, this will deliver the better environmental outcomes that we all so desperately need. Reintroducing elements of the existing system to this new model fails to recognise the necessary shift in approach to secure better outcomes. We will, of course, discuss the mitigation hierarchy at length in subsequent groupings, so I hope that, with those explanations and the discussion still to come, the noble Baroness is content not to press her amendment.

Amendment 291, tabled by the noble Lords, Lord Roborough and Lord Blencathra, would allow the Secretary of State to withhold approval from an EDP for reasons of public interest. I am happy to be able to reassure the noble Lords that there is nothing to compel the Secretary of State to approve an EDP and it will therefore be within their power to reject an EDP for any reason, including for reasons of public interest, as expressed in this amendment. I hope, therefore, that the noble Lords feel able not to press their amendment.

I move to Amendment 264, tabled by the noble Earl, Lord Caithness, which would introduce three tests that an EDP must specify and meet to avoid legal challenge. The first test relates to appropriate consultation; the Bill already contains specific measures governing consultation, so the amendment would apply to the pre-consultation period required by the noble Lord’s previous amendment.

--- Later in debate ---

[Lord Cromwell (CB)]

All the amendments in this group are basically trying to answer the question: what would success look like, and how do we measure it? I guess it is the old consultants’ cliché, I guess. The point I was concerned about was not just a financial audit but measuring the performance of EDPs. Environmental change is fantastically difficult and subjective to measure, so is there a commitment to use external third-party expertise to evaluate their success, or will Natural England mark its own homework?

[Baroness Taylor of Stevenage (Lab)]

As if by magic, I have the answer for who audits Natural England, so I can answer the noble Lord’s question. The accounts of Natural England are audited by the Comptroller and Auditor-General under the Natural Environment and Rural Communities Act 2006. It is the National Audit Office, so I hope that is helpful.

[Lord Cromwell (CB)]

That is helpful, and I am sure that it will look deeply into the financial performance, but I am worried about how the actual performance of the EDP will be measured.

[Baroness Taylor of Stevenage (Lab)]

I was just coming to that. The performance of EDPs will be monitored in the ways that have been set out. There will be oversight from the department and a process for monitoring the EDPs. It might be helpful if, between Committee and Report, the noble Baroness, Lady Hayman, and I can set out exactly how that process will work, and we will aim to do that.

The noble Baroness Coffey talked about the environmental principles policy statement, and I can confirm that the Bill must have regard to that statement, in line with the Environment Act 2021. With all those comments, I hope that noble Lords will not press their amendments.

[Lord Lansley (Con)]

My Lords, I wonder if I might just ask the Minister, after her helpful and interesting points, about the back-up conservation measures that are included in the EDP but are not expected to be needed. That being the case, can we have conversations about the calculation of the cost of the EDP, the amount of the levy, how the levy and the liabilities for the levy are to be determined and when they are to be paid? Can we talk about how that applies to back-up conservation measures? Clearly, developers do not want to be in a position of paying them, or expecting that they have to, then finding that they do not have to pay them.

[Baroness Taylor of Stevenage (Lab)]

I understand the point that the noble Lord is making. When a developer opts for an EDP, there will be a clear statement of the costs. But I think it would be useful to have a conversation between now and Report, so I am very happy to do that.

[The Earl of Caithness (Con)]

My Lords, I am grateful for the full reply that the noble Baroness has given. Can I ask her just to lift the lid a little bit on the timing of the public consultation? How long a time are the Government thinking of between the Secretary of State receiving an EDP and confirming or denying the EDP? How long is that public consultation going to be?

[Baroness Taylor of Stevenage (Lab)]

As the noble Earl will be aware, there are standard timings for government consultations, so we would employ those principles as set out in the government regulations for all consultations. If the noble Earl is not familiar with those, I can certainly send him the details.

[Baroness Grender (LD)]

My Lords, I thank the noble Baronesses for their responses on this. I thank them also for continuing to have an open door. I think that the whole Committee is conveying a huge ambition to work with the Government to get this over the line. I still have concerns that “material improvement” will be interpreted by some as a low common denominator, but we will go away, study the letter received this morning and the words used today, and I hope continue to meet between now and Report. I think that what a lot of Members who have spoken just now are trying to get towards is practical measures that can provide a level of specificity so there is clarity, so that examples that I raised in my opening speech—of much-promised and not-delivered measures—do not occur again. That is what we are striving to achieve here. With that, I beg to ask leave to withdraw the amendment.