Planning and Infrastructure Bill

Baroness Young of Old Scone Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[The Earl of Caithness (Con)]

My Lords, like my noble friend who has just spoken, my amendments in this group are about challenging the EDP. We spoke about that on the last amendment; I do not think there is any need for me to repeat myself. I express my thanks to the Minister, who will probably go into this in quite some detail.

[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.

[Lord Gascoigne (Con)]

My Lords, I will speak to Amendments 286 and 300, in the name of the noble Baroness, Lady Willis of Summertown, who, alas, gives her apologies that she is unable to speak today. I have signed the amendments, alongside other noble Lords, and hope I do them some justice.

As noble Lords will see, these two amendments—and pretty much this whole group—seek to improve the overall improvement test and ensure that EDPs deliver significant improvements. I echo the opening the remarks from the noble Baroness, Lady Grender, and welcome the letter this morning and the amendments put forward previously. That demonstrates movement.

I am afraid I will deviate a little. I do not think it has been incredible or extraordinary. I am glad that the Ministers—as I always say, my two favourite Ministers —have their doors open for us, though they may regret making that promise, as I have some concerns still with this. It is not just what has been expressed in this Chamber; it goes beyond this Chamber, on all sides of the debate, from ecologists and conservationists to developers, lawyers and so-called yimbys.

To turn to the specific amendments, Amendment 286 intends to strengthen the overall improvement test, and I welcome Amendment 286A from the Government, which seeks to do this. However, there are still questions. We hear that it is up to the Secretary of State for Defra and their judgment, ahead of any evidence to the contrary. Amendment 300 is related, and seeks to ensure that significant, measurable improvements to nature are achieved by the EDP. While I recognise and welcome what the Government have sought to do by putting in place back-up measures, what is the baseline evidence that the Secretary of State for Defra is looking at when making that judgment? It sounds like this is a recent development, but what are the so-called good reasons that it may fall outside the remit of the Secretary of State for Defra? If, hypothetically, it is just the Secretary of State for Defra—to park the “good reasons” wording—is it envisaged that that would be done in consultation with other departments, such as MHCLG or even HMT?

Overall, it is important that we put in checks and balances, and these amendments seek to do that. They would not wreck the Bill but seek to ensure the improvements that we all, including the Government, want. They would, I hope, ensure that development continues.

--- Later in debate ---

[Lord Gascoigne (Con)]

My Lords, I am delighted to kick-start this group, not least after the great discussion we just had on the previous group. Equally, I am delighted and honoured to have the support of the noble Baronesses, Lady Young of Old Scone and Lady Parminter, for my amendment.

Amendment 245, which is in my name, seeks to specifically set out the importance of the mitigation hierarchy, which has reared its head on various occasions throughout the entire passage of the Bill. Most should already know what that means but, in short, it is the well-established common principle in development that there are a series of steps to go through on a site when it comes to the environment. These are: first, to avoid, then to minimise, then to restore, and then to offset.

As we just touched on, the problem with EDPs in this Bill is that we simply fast-track to compensation. In effect, developers can ignore the first three stages and pay into some pot to offset whatever it is they are doing. Here, the only obligation is the payment; your role is then done. I am not normally like this, but that is a pretty dystopian view. I know that, with many, that will not happen, and some will seek to follow those steps when working on development, even if the law does not stipulate it, but that would not be enforced and would be down to good will.

Amendment 245 would fix that and insert the mitigation hierarchy as part of the EDP’s conservation measures. Indeed, my amendment would be inserted into the subsection that explicitly states:

“An EDP must set out the measures (‘conservation measures’) that are to be taken by, or on behalf of, Natural England, under the EDP”.


It may be argued that it is not needed because of the mitigation hierarchy. The Minister is not in her place, but she was just saying at the Dispatch Box that the mitigation hierarchy is already implicit and that it is common practice. I have the highest regard for the Minister, who I assume will be responding, and I am sure she will say at the end of this debate that, while the Government support the principle and the arguments behind what I am seeking to do, it is not needed because it is in the NPPF. However, if it is not explicit in the Bill, it leaves the door open to regression legally.

I know that some see the NPPF more as planning guidance than law, and that the NPPF is general rather than specific. An EDP is entirely novel, hence why we are rightly having this huge debate; it creates a new regime and, as a result, it is not in the NPPF yet. Despite what the Minister just said, as it is new, it is right that it should feature in the Bill because it is creating a whole new aspect of planning law. It would ensure that the Bill and the NPPF align coherently. That should be explicit in the Bill.

It is not just me who thinks that the mitigation hierarchy should feature; in the previous group, the Government set out some amendments themselves. If you look at the guidance when these amendments were set out, the Government said:

“These changes underline the continued role for the mitigation hierarchy in the design of EDPs, ensuring that local conservation measures are preferred unless there is a clearly articulated environmental basis to look further afield”.


I think that is pretty much what the Minister said in concluding the previous group so, when those amendments came down, I was relieved. As I said on the previous group, I am grateful that the Government have put some amendments down. When I kept hearing that the mitigation hierarchy is going to be maintained, I thought that that was great; it is a good step. However, when I look at the list of amendments that we are debating in this group, I am afraid that I cannot find exactly where the Government say that the mitigation hierarchy will take place. This amendment seeks to fix that and to put in what the Government say they support.

It feels like we were debating this only yesterday. It was literally yesterday, at 1 am, when we were talking specifically about species. It may well be that, even if there are no species to be protected on a site, we can all agree that it is right that any development seeks to minimise and avoid as much damage as possible. That in itself is conservation.

There are a number of similar amendments in this group from other noble Lords, all of which seek to address the same issue of putting specific references in, and I support them, especially Amendment 301 in the name of the noble Baroness, Lady Willis of Summertown, to which I have added my name. It seeks to ensure that the mitigation hierarchy applies, while allowing flexibility for Natural England. If we take the group as a whole, these amendments do not stop the EDP process and they are not political games, certainly not from me. It does what the Government say they support. I hope that it will feature at some stage as the result of these conversations, because it is not in the Bill at the minute. I hope that the Minister recognises that this improves what the Government seek and makes the EDP a win-win for nature and development. I beg to move.

[Baroness Young of Old Scone (Lab)]

My Lords, I thank the noble Baronesses, Lady Parminter and Lady Willis, for supporting Amendment 256ZA which I have tabled. I support Amendment 245 in the name of the noble Lord, Lord Gascoigne. His eloquent promotion of it means that I do not need to explain what the mitigation hierarchy is all about. However, it is an important principle in conservation, and it has come to the fore in the biodiversity net gain policy. In the case of this Bill, it would require a developer or Natural England preparing an EDP to look first at how to avoid damage to natural features, or, if avoidance of damage is not possible, to mitigate—that is, reduce—the impact, or, as a last resort only, to provide compensation habitat for the damage.

Under the draft Bill, Natural England could be, subtly or otherwise, pressurised into writing an EDP that jumps straight to damage and compensation. That might be the lowest-cost option and therefore to be desired by developers and also perhaps by the Government in pursuit of growth, even where it would have been feasible for Natural England or a developer to implement measures to safeguard the original protected habitat. I know that the Minister does not like the Bill’s nickname of “cash to trash” but, if it is not to be portrayed in that way, I believe that it will need to be amended to encourage developers and Natural England to comply with the mitigation hierarchy.

--- Later in debate ---

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to my Amendment 258C, which seeks to ensure that EDPs are grounded in scientific evidence and on clear ecological baselines, so that they can be judged as genuinely delivering measurable environmental improvements. The Government’s proposed amendments are welcome as going some way, requiring Natural England to have regard to existing scientific evidence, but they are silent on what happens if there is not sufficient data or evidence. Perhaps the noble Baroness could say whether Natural England would at that point be required to collect new evidence to establish a baseline from which measures and outcomes would be judged.

This amendment would ensure that every EDP has a strong evidential foundation, so that the interventions can be judged on whether they are credible to make them defensible. I remind noble Lords that we are dealing in this circumstance with the most important and threatened environmental features in this country, which until now have been regarded as requiring the highest level of legal protection, so it is important that we get the scientific and evidential bases right.

To assess whether development has a negative or a positive impact, it is essential to know what the starting ecological conditions were. Without a sufficient baseline, it is not possible to evaluate whether an EDP is achieving the environmental improvements it is supposed to. Requiring a proper baseline and evidential base builds in transparency, increases trust in the whole system, and allows proper monitoring over time, and I welcome the noble Baroness’s explanation of the additional amendments on monitoring.

This amendment also requires Natural England to take account of the environmental principles in preparing the EDP and to publish a statement of how it has done so. The noble Baroness has already talked about the importance of the environmental principles, but it would be useful to get some clarification of how they would refer to Natural England’s role as opposed to ministerial roles, to which it is clear through legislation that they already apply. Requiring Natural England to consider them explicitly and to put that in the Bill would give clarity for developers, regulators and the public.

[Lord Randall of Uxbridge (Con)]

My Lords, my Amendment 285A commits to a new clause, which would require Natural England to undertake a baseline biodiversity survey for an EDP, very much along the lines that the noble Baroness, Lady Young of Old Scone, has just said, and would require the Secretary of State to consider this when determining whether an EDP passes the overall improvement test. I am very keen on biodiversity. My noble friend Lady Coffey referred to me as a twitcher. I take that not entirely well, because “twitcher” is slightly derogatory. I would like to be called a birder, and that is reflected in my coat of arms where there are four examples of a particular species which she will probably know from her reed beds at Minsmere: the bearded reedling, which of course is more commonly known as a bearded tit.

The reason for this biodiversity baseline is so that, as the noble Baroness said, you can find out what is happening now. The previous information may be out of date. It is important for the future condition of the area and to see whether the EDP is working, and it would highlight risks. In the interests of time, I will leave it there to hear what the Minister says on this.