Planning and Infrastructure Bill

Lord Roborough 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 Roborough (Con)]

My Lords, this group of amendments is aimed at strengthening the natural recovery framework model and addressing the overall improvement test. I do not intend to take up more time than is necessary, so I will not address each amendment in this group individually. However, I will speak to my Amendment 291, which stands also in the name of my noble friend Lord Blencathra.

Amendment 291 seeks to provide a power for the Secretary of State to reject an environmental delivery plan where they consider it is not in the public interest. We believe that this is a crucial safeguard. While we recognise the need for local responsibility and innovation within the NRF model, it is important that national priorities and the wider public good remain central. This amendment seeks to ensure that where an EDP does not sufficiently deliver the environmental improvements that are expected, or where it conflicts with other essential national interests, the Secretary of State can act decisively. It seeks to provide a necessary balance between local ambition and national accountability. While we are opposed to the entire EDP bureaucratic scheme, if the Government insist on pursuing it, it must be meaningful and measurable. The framework must be rooted in real outcomes, not vague intentions.

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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.

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[Lord Fuller (Con)]

My Lords, on the face of it, I welcome government Amendment 245A and the amendments from the noble Baroness, Lady Young of Old Scone, because it is clearly right that the public should understand what the sequence proposed might be.

My noble friend Lord Lucas has stolen some of my thunder in identifying that some of the research can take place only at certain times of year which, if it is a particular time window, may be, say, 11 months away, and there is this temporal longevity which may happen over many seasons. It is really important that, as part of that requirement for laying out the sequencing, we get an understanding of what timescales may be needed, because my concern is what happens at the point at which an EDP is first mooted and that sequencing process starts. What assurances can the Minister give that, because the process may take several years, it will not, in effect, impose a moratorium on any development while we wait for the sequences and processes to go through? These were laid out in the helpful diagram from the noble Lord, Lord Krebs, and the bits before.

It is important that government Amendment 245A which, as I say, I welcome, should be coupled with the anticipated timescales. It might be implicit in the amendment, but it would be helpful if the noble Baroness could make it explicit that sequences and timescales are in there and whether that applies to a moratorium in the meantime.

[Lord Roborough (Con)]

My Lords, I will speak first to my two amendments in this group. Amendment 293 would require Natural England to report on environmental delivery plans more regularly than simply at the halfway and completion points of the plan. This is important, because without frequent reporting, Parliament, local authorities and indeed the public are left in the dark for too long about whether the plans are on track. More frequent updates would allow for earlier course correction where plans are falling short, helping to build public confidence through transparency and ensure that delivery does not drift between the start and the finish. Can the Minister set out why the Government are confident that the current reporting framework is sufficient when many stakeholders believe more timely scrutiny is essential?

My Amendment 295 would require environmental delivery plan reports to include assessments of their impact on local communities and the local economy, rather than focusing solely on environmental consequences. This matters because environmental improvement is not achieved in isolation. Communities are directly affected, sometimes positively, sometimes negatively, by the choices made in land use, development restrictions or habitat restoration. Understanding the economic and social consequences alongside the environmental ones is the only way to ensure that these plans are fair, balanced and capable of commanding long-term public support.

My noble friends Lord Jamieson and Lady Scott of Bybrook have repeatedly argued that local community voices matter in planning and this is no different. On these Benches, we continue to stand up for local engagement and meaningful consultation so that communities are partners and not bystanders in shaping outcomes.

Briefly, I thank the noble Baroness, Lady Young of Old Scone, for her Amendment 258C and my noble friend Lord Randall of Uxbridge for his Amendment 285A. These are both vital because they strengthen the foundations on which environmental delivery plans are built. I have direct experience of this with my own farming activities and new forest development. Without accurate data on the baseline condition of the soil, flora and fauna, and water quality, it is simply impossible to be confident on progress. I would go further and suggest that this data should be published so that all stakeholders can hold Natural England to account. It is essential if plans are to be scientifically robust, deliver measurable benefits for nature and remain aligned with the environmental principles that your Lordships’ House has consistently supported. In that context, I should refer the Committee to my register of interests, which I have not done before in this respect, as a shareholder in Agricarbon.

These are constructive and necessary amendments. Taken together, they provide the checks, the evidence base and the community voice that will make environmental delivery plans more effective, more trusted and, ultimately, more deliverable.