Planning and Infrastructure Bill (Ninth sitting)

Matthew Pennycook Excerpts

Committee stage
Thursday 15th May 2025 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 119, in clause 55, page 88, line 7, leave out “are likely to” and insert “will”.

This amendment would mean that an EDP would only pass the overall improvement test if it is certain that the proposed measures will outweigh any negative environmental effects caused by the development.

Amendment 14, in clause 55, page 88, line 7, after “sufficient to” insert “significantly”.

This amendment would require that conservation measures within Environmental Delivery Plans significantly outweigh any negative effects of development.

Amendment 20, in clause 55, page 88, line 9, at end insert—

“(4A) An EDP does not pass the overall improvement test—

(a) where the environmental features affected are qualifying features of a European site, European marine site, European offshore marine site or a Ramsar site, unless—

(i) the Secretary of State is satisfied that there would be no adverse effect on the integrity of the relevant site from the delivery of development to which the EDP applies, either alone or in combination with other plans and projects, with the same standard of confidence as if the EDP were being assessed as a plan or project under Regulation 63(5) of the Conservation of Habitats and Species Regulations 2017;

(ii) it has not been possible for the Secretary of State to be satisfied under sub-paragraph (i) but the provision of measures to offset any unavoidable harm to the relevant features significantly outweighs the negative effect of the development;

(iii) there is an overriding public interest in permitting the EDP to be made and no alternative approaches to meeting the public interest that would result in less harm to the relevant site;

(b) unless the Secretary of State is satisfied that Natural England has demonstrated that all reasonable opportunities to avoid or minimise negative effects caused by development within the scope of the EDP have been taken;

(c) unless Natural England has demonstrated that—

(i) any measures to avoid or mitigate negative effects caused by development will be delivered and functioning prior to any such negative effects occurring, and

(ii) any proposed compensation measures will be delivered to prevent any irreversible harm to the conservation status of relevant ecological features.”

This amendment outlines when the Secretary of State must find that an EDP does not pass the overall improvement test.

Government amendment 98.

Clause stand part.

Clause 56 stand part.

[The Minister for Housing and Planning (Matthew Pennycook)]

It is a pleasure to continue our proceedings with you in the Chair, Dr Huq.

I was speaking to this group of measures at the tail-end of yesterday’s sitting. I discussed clause 55, I spoke to the purpose and effect of clause 56, and I mentioned Government amendments 97 and 98. I will now turn to the other amendments in this group, beginning with amendment 119, tabled by the hon. Member for North Herefordshire, which seeks to amend the threshold for when the Secretary of State may make an environmental delivery plan.

Amendment 119 speaks to the shift from site-by-site assessments to our strategic approach. In developing an alternative to the existing system, we need to recognise that a strategic approach that covers a potentially large amount of development over a number of years is a materially different proposition from assessing the impact of a single development. We must therefore approach that proposition in a different way. Put simply, we cannot be as unequivocal about outcomes as we would be on a site-by-site assessment basis.

The drafting of the clause reflects that, as it would not be appropriate to replicate the approach applied to assessments of individual sites. Instead, the Bill provides a wider package of safeguards, such as appropriate monitoring, the ability to deploy back-up measures and the ability to amend environmental delivery plans, to ensure that plans deliver the positive outcomes over the plan period.

That is also why clause 50 requires that an environmental delivery plan must set out not only how conservation measures will address the environmental impact of development, but how they will contribute to an overall improvement in the conservation status of the environmental feature in question. It is also why clause 52(2) requires a draft environmental delivery plan to set out why the conservation measures selected are “considered appropriate” to meeting that goal.

As we have said since the Bill’s introduction, it is about delivering more for nature, not less. As I said in a previous sitting, we are therefore carefully considering the advice of the Office for Environmental Protection and its support for the intentions of the reforms. With that explanation, I hope that the hon. Lady will in time agree not to press amendment 119.

Amendment 14 seeks to introduce a new threshold for when the Secretary of State may make an environmental delivery plan. Again, in developing the new approach, we have always been clear that the nature restoration fund will deliver more for nature, but that is not a substitute for wider action to support nature recovery. While it is right that we seek to do more and to outweigh the impact of development, we must ensure that we are not asking developers to contribute more than their fair share. That is not a check on ambition, but an acknowledgment that positive results can be realised only if environmental delivery plans are a viable option for developers.

The test in clause 55(4) ensures positive outcomes, but it cannot be set at a level that would make it impossible to bring forward an operable environmental delivery plan—that would be a lose-lose situation for the economy and for nature. Again, on that basis, I hope that the hon. Member for Taunton and Wellington will not press amendment 14.

Finally, I turn to amendment 20, also tabled by the hon. Member for North Herefordshire. This amendment seeks to amend the operation of the overall improvement that the Secretary of State must consider before making an environmental delivery plan. As I have already clarified for the Committee, the nature restoration fund will provide a different route for developers to discharge existing environmental obligations. In establishing this new approach, it is necessary to depart from existing process.

As I have outlined, the new approach will go further than the existing system, which requires measures only to offset harm to achieve neutrality. By taking this new approach we will deliver more for nature, not less. Although the Bill does not require a restrictive application of the mitigation hierarchy, we believe it nevertheless effectively maintains that hierarchy, as does the chief executive of Natural England, who gave oral evidence to the Committee.

Moreover, the flexibility that the Bill provides in respect of the hierarchy will be used only where Natural England considers it appropriate, in line with the overarching objective of delivering better outcomes for the relevant environmental feature over the course of the environmental delivery plan. The hon. Lady’s amendment would remove that flexibility and tether the nature restoration fund to the existing status quo that we know—I emphasise that again—is not working for our sites and species.

I also emphasise, however, that I understand the importance of ensuring that the flexibility is used only where it needs to be, and that everyone can be confident that harm is being avoided. I very much understand the concerns about the certainty of outcomes. We want everyone to be confident, so I am open to considering ways to underpin that confidence in a way that still allows the model to work as we want it to and as it needs to; my hon. Friend the Member for Basingstoke also asked yesterday what more the Government might consider in that regard. With that explanation, although I know further debate is forthcoming, I hope that the hon. Lady will consider not moving her amendment.

[Ellie Chowns (North Herefordshire) (Green)]

It is a pleasure to serve under your chairship again, Dr Huq. I thank the Minister for his comments. He emphasised that his intention in the Bill is to continue to protect nature at the same level, but differently. He emphasised a different but not worse approach. I share his desire to ensure that even if it is different, it is not worse, but I am concerned about the way the Bill is framed.

In clause 55, we are really getting to one of several cruxes of the matter. The Secretary of State’s environmental statement on the front of the Bill states:

“the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law.”

A completely different opinion is expressed, however, in the letter from the Office for Environmental Protection, whose people know about this issue. I am glad that the Minister said yesterday that he is considering very seriously what the OEP said; I read the letter again in detail this morning—it is really hard-hitting.

The Minister points out that Natural England thinks there is no problem with the application of the mitigation hierarchy, but that is not the opinion of the Office for Environmental Protection. Given that Natural England will effectively have a conflict of interest under the Bill’s provisions, we need to pay serious attention to what the OEP says. I very much look forward to his promised comprehensive response to the OEP’s advice.

Amendment 20 is essential to ensure that the overall improvement test applied to EDPs, which is mentioned in clause 55, is robust, scientifically grounded and consistent with domestic and international environmental law. It is about making sure that when we talk about overall improvement, we really mean it—not on paper, not in theory, but in reality.

Amendment 119 makes a simple but essential change. Under the Conservation of Habitats and Species Regulations 2017, as set out in the OEP’s advice, there is a high degree of certainty established in statute and case law that environmental standards will be maintained beyond reasonable scientific doubt. In the overall improvement test in clause 55, however, conservation measures need only be “likely” to ensure that the environment is maintained. That leaves huge leeway for ministerial subjectivity, and it opens the door to damaging development. It is a clear regression in environmental law. Again, that is emphasised very clearly by the OEP, which states that the test in clause 55

“would be considerably more subjective and uncertain than under existing environmental law.”

How is that compatible with the statement on the front of the Bill? It cannot be.

Given that the Minister has assured us that it is not the Government’s intention to weaken environmental protections, amendment 119 would fix the loophole by replacing the words “are likely to” with the word “will”. That would mean that an EDP would require an objective test that conservation measures will achieve an overall improvement.

This amendment is not about gold-plating; it is simply about matching the level of certainty that currently exists in law and assuring the House that environmental protection will be maintained. I would be deeply worried if the Bill passed as it stands, with the weakening in certainty, because that would clearly be contrary to the Government’s statement on the front of the Bill.

Amendment 20 sets the minimum legal and scientific thresholds that must be met before an EDP can be said to pass the overall improvement test. Again, the advice from the OEP is very robust—there needs to be scientific certainty. Amendment 20 would specifically introduce safeguards when protected nature sites are involved, such as European sites, Ramsar wetlands and other internationally important conservation areas.

Amendment 20 would ensure that the Secretary of State must apply a standard of evidence equivalent to the rigorous integrity test under the Conservation of Habitats and Species Regulations 2017. This is not new law; it is a reaffirmation of the protections that have guided habitat conservation for decades, ensuring that there is no regression, as per the Environment Act 2021. The amendment is absolutely necessary, otherwise clause 55 risks watering down the existing protections.

Let us not forget what is at stake here. The UK has 658 designated special areas of conservation, special protection areas and Ramsar sites across the four nations. They include places of global ecological importance— the Norfolk broads, the Severn estuary and the north Pennines—and places that are very dear to my own heart, such as the River Wye and its catchment. These places support rare and endangered species, and are central to our commitments under the Bern, Bonn and Ramsar conventions. However, many of them are already in unfavourable condition. Natural England’s latest data shows that only 38% of England’s sites of special scientific interest are in favourable condition and many of those overlap with European sites.

This amendment would provide three layers of safeguards. First, it says that an EDP cannot be approved if it would harm the “integrity” of a European or Ramsar site, unless that harm is either fully avoided or meets the high bar set under existing habitat regulations. Secondly, it would require Natural England to demonstrate that “all reasonable opportunities” to avoid or minimise harm have been taken.

Thirdly, the point about the mitigation hierarchy is really important—we will discuss it again when we debate a future clause. It is a key concern for the Office for Environmental Protection and all who care about nature. The mitigation hierarchy means that we avoid environmental harm before we go to mitigation or offsetting. The problem with EDPs, as they are set out under part 3 of the Bill, is that they shift straight to offsetting. As I tried to explain yesterday, some things cannot be offset; irreplaceable habitats cannot be offset.

In addition, unless we are certain that offsetting is done in advance and that the habitat is linked to the one being destroyed, that could lead to the inadvertent destruction of species—for example, dormice, as I said yesterday. It is important that the Bill strengthens the commitment to the mitigation hierarchy and that that strengthening is written into the Bill, as well as ensuring that the overall improvement test is compatible with the existing level of protection under existing environmental law.

The expert advice of the OEP directly supports the points that I am making. It concluded that the overall improvement test, as currently drafted, would weaken existing legal protections, and has consequently called for amendments to ensure that the test aligns with environmental law and principles.

We also need to ensure that the UK remains compliant with international and trade obligations. Under the EU-UK trade and co-operation agreement, we are bound not to weaken environmental standards in ways that affect trade or investment. Removing or diluting protections for SACs and SPAs through a vague or permissive improvement test could fall foul of that requirement and expose the Government to legal challenge.

Fundamentally, the amendment also reflects the will of the public. More than 80% of people support strong legal protections for nature sites, even when development is proposed. I fully agree with the Minister’s articulation of the view that development does not have to come at the expense of nature—it is absolutely possible to build the houses that we need in a way that respects and indeed improves nature protection—but we can do that only if the legal framework ensures that development takes place in that way. Otherwise, there is a serious risk that the clear weakening of environmental protections, as outlined in the current drafting of the Bill, will lead to the opposite of what the Government say they want to do on the front of the Bill.

These two amendments do not prevent development. They simply ensure that development is compatible with the integrity of our most protected sites, give effect to long-standing legal protections, uphold the Office for Environmental Protection’s recommendations, and ensure that the overall improvement test is not a loophole but a genuine environmental safeguard. I strongly urge hon. Members on both sides of the Committee to support both amendments if we are serious about development going hand in hand with nature protection.

--- Later in debate ---

[Luke Murphy (Basingstoke) (Lab)]

I acknowledge that this is an important part of the Bill and that some organisations have expressed concerns about the matter. I agree with the hon. Members for North Herefordshire and for Taunton and Wellington pointing out what the OEP has said about this part of the Bill, but we should acknowledge that what the Minister said yesterday and his speech today could not have been clearer: the Government are reviewing and reflecting on the OEP’s advice, and they have set out their incredibly clear intention to ensure not only that nature is not worse off, but that it is better off as a result of the Bill.

The Minister has been crystal clear that the Government are reflecting on the OEP’s advice. The latter came through seven working days ago yesterday. We are now on the eighth working day since it provided its advice. I urge colleagues to take the Minister at his word and to allow the Government to respond to the OEP. If colleagues across the House are not content with their response, that can be dealt with on Report, but we should take the Minister at his word when he says that the Government are taking the OEP’s comments incredibly seriously and reflecting on them.

[Matthew Pennycook]

I thank my hon. Friend for that contribution, although I do not expect hon. Members to just take me at my word; I think they should both interrogate the Bill and the provisions and reflect on my further comments. Although I caveat everything by saying that we are grateful to the Office for Environmental Protection for its recent advice and its support for the intention of these reforms—let us be clear: it supports the intention and we are carefully considering its advice —we are clear that this approach will deliver more for nature, not less. The important thing is that those improved outcomes—and they are improved outcomes; we are not talking about merely maintaining the status quo—can be achieved only if we are willing to do things differently. That is why the Bill establishes an alternative to existing processes, but only where that will lead to better outcomes.

I should make a brief comment about Natural England, as the other body that will be involved in the design and implementation of environmental delivery plans. It is slightly unfair, if I may say so, for the hon. Member for North Herefordshire to suggest that there is a stark conflict of interest here. As I have said in previous sittings, Natural England has the expertise and ecological skills to make the right judgments. It will put in place suitable propriety barriers to ensure that it can act effectively as both an advisory body and the body tasked with preparing, designing and implementing EDPs.

[Ellie Chowns]

I have a genuine question and concern. Under the Bill, Natural England has responsibility, as advisers, preparers, developers and deliverers, to implement the EDPs, and it is also judge and jury on the effectiveness of EDPs and whether they are doing the job that they are intended to do. That is a lot of functions to give to one body. There are not checks and balances within that system. This is no comment on the expertise and commitment of Natural England. I am certain that everyone working for that body shares my and the Minister’s desire to see the natural environment thrive and improve, but the reality is that the Bill’s structure and the responsibilities that it gives to Natural England span the full gamut, from implementing to checking, and that is effectively a conflict of interest, is it not?

[Matthew Pennycook]

I do not think it will be, for the reasons I have given: suitable propriety barriers will be put in place and the House will be able to take a view on whether those are sufficient. I would also slightly push back on the idea that Natural England is judge and jury when it comes to EDPs. The Secretary of State has responsibility for judging whether an EDP meets the outcomes test on the basis of advice from Natural England.

[Ellie Chowns]

rose—

[Matthew Pennycook]

I will make a bit of progress, then I will be happy to give way.

Hon. Members may say that those safeguards are not sufficient, but we trust elected Members in ministerial capacities to exercise their judgment, in line with the ministerial code and taking into account their obligations under both international and domestic law. We trust them to do that. If hon. Members take issue with the basic fact that a Secretary of State can exercise judgment, then we disagree.

[Ellie Chowns]

I have two points. The first was raised by the Office for Environmental Protection in its advice. I was going to come to it when discussing clause 58, because it is specifically about the amendment of EDPs. Only Natural England and the Secretary of State get to decide if an EDP should be amended. There is not even any requirement for consultation. There is no mandatory requirement to assess whether an EDP is doing its job. If we are to trust Natural England and the Secretary of State to do that, when they will both have an in-built interest in declaring that an EDP is doing its job, there is no mechanism for ensuring that an EDP is actually meeting the outcomes that are envisaged.

The Minister asks us to trust in the good judgment of the Secretary of State, but I remind the Minister that previous environmental Secretaries of State—who would, under these provisions, have been expected to make these decisions—include Liz Truss from 2014 to 2016, Owen Paterson from 2012 to 2014, the right hon. Member for North East Cambridgeshire (Steve Barclay), and Thérèse Coffey. Those are not people who necessarily share the Minister’s espoused commitments, and not necessarily people who everybody who cares about nature protection might automatically trust to make important and sensitive judgments about whether environmental protection is taking place.

The entire point of a Bill—we talked about this in a previous sitting—is that it sets out what has to happen and why, because we cannot simply trust whoever happens to be in the seat of Secretary of State to always do the right thing. That is why we have law. I beg the Minister to recognise that we cannot simply trust the judgment of whoever happens to be Secretary of State for the next however many decades. The Bill must be written correctly, so that it embeds environmental protections and does not leave the door open for activity contrary to the Minister’s stated aims.

[Ellie Chowns]

I apologise.

[Matthew Pennycook]

The hon. Lady tempts me down a path of commenting on past Secretaries of State—I would enjoy that, but I will not do it. She is absolutely right that we must ensure that this legislation can be exercised appropriately by any Secretary of State, whoever they might be, in years to come.

Where the hon. Lady and I slightly differ is on what legislation is required to do in all circumstances. We rely on Ministers to exercise their judgment in line with the relevant legislation and other obligations, for example on call-in decisions that the Deputy Prime Minister and other Ministers in my Department are asked to make. They are judgments. They are exercised on the basis of a recommendation by the Planning Inspectorate, and of the relevant material considerations, but a judgment is still exercised. We are saying that the Secretary of State has to exercise a judgment on the “overall improvement test” but on the basis of advice from Natural England, once consultation has been carried out.

As the hon. Member for Taunton and Wellington mentioned, clause 55 gets to the heart of this approach. We are reflecting on the points made in the letter from the Office for Environmental Protection. I want to set out why we feel our approach is right, and that the necessary safeguards are built in. I will deal briefly with the amendments in turn, starting with 119.

Changing “are likely to” to “will” would require a greater deal of certainty from the Secretary of State before they would be able to make an environmental delivery plan. That does get to the heart of the difference in approach. In moving away from a site-by-site assessment to trying to improve outcomes for nature in the round, over a wider geographic area, we have to move away from a time period in which those conversations, or offsets, can be delivered on those sites specifically. By its very nature, the approach requires a degree of, if you like, gazing into an as-yet-unknown future. The test of “likely” makes that difficult to achieve.

[Gideon Amos]

Will the Minister give way?

[Matthew Pennycook]

I will finish this point first.

That is why there are safeguards built into the process in terms of monitoring, the backup measures that can be taken in terms of amendment or revocation, and the ultimate judgment made by the Secretary of State on the basis of advice on whether the EDP is having the relevant outcomes. We cannot, unless we are determined not to attempt this approach in any way, apply near-impossible tests for an EDP to meet.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I have total sympathy with what the Minister is saying, and understand the point that the Member for the hon. Member for North Herefordshire is seeking to address. Does the Minister agree that one of the lessons from section 106 is that, in many cases, funds end up being returned to the developer, as it is impossible to spend on the mitigation because of the specificity for which it is provided?

The Opposition agree with the Minister that there will be occasions when, in the view of the Secretary of State or Natural England, it is impossible to build the specified badger, bat or newt mitigation on a specific site, and that it would be better to spend that money somewhere else to create a better overall environmental benefit. It is therefore important to provide for that flexibility in the legislation.

[Matthew Pennycook]

The shadow Minister makes my case for me, because we want to allow Natural England to have that flexibility.

[Ellie Chowns]

rose—

[Matthew Pennycook]

If the hon. Lady will let me respond to this point, I will then address her point.

It is precisely that flexibility that we want to allow Natural England to use, because over that wider geographic area, it can look at which conservation measures, in the round, will have the most impact, rather than costly gold-plating, which happens now in certain circumstances— I will not repeat the individual cases, but we hear about them in the press a lot—and often leads to bad outcomes, and which flows from the site-by-site assessments that must take place.

What gets to the heart of the approach, and is the reason why some of these amendments are deeply problematic, is that, under this approach, we cannot be as unequivocal as we can currently on the basis of individual site-by-site assessments. There needs to be the opportunity to take a forward view as to what will have the likely effect of having an overall benefit for nature in the round across the EDP area.

[Ellie Chowns]

With respect, I do not think that the point made by the shadow Minister does make the Minister’s case for him, because it was about taking a site-by-site approach, which is not a good analogy here. We already have capacity under existing environmental law to take a district-wide approach—for example, district-level licensing for newts. I am not opposed to that at all; it is a very good idea. That is not the issue here; the issue is the degree of certainty.

If the Minister maintains his position that EDPs must only be subject to an “are likely to” test, how is that compatible with the absolute certainty on the front page of the Bill that it will not result in any decline in environmental protection? How can lots of “are likely tos” add up to the certainty that the Secretary of State sets out on the front page of the Bill? They simply do not.

[Matthew Pennycook]

We think the Bill provides that certainty, which is why the Secretary of State felt able to make that statement, but—this is really important— while the hon. Lady has clearly indicated that she, like us, is unhappy with the status quo, and while I think she recognises the limitations of the impact we can have in terms of beneficial nature outcomes using the current, individual site-by-site-assessment basis, her amendment 20 would, in practice, result in the continued need to assess development on a case-by-case basis and would require conservation measures to address the specific impacts of each development. It does not provide the necessary flexibility that will lead to better outcomes for nature, while at the same time unlocking development and allowing it to be accelerated.

[Ellie Chowns]

rose—

[Gideon Amos]

rose—

[Matthew Pennycook]

I will give someone else a chance, but I am happy to come back to the hon. Lady.

[Gideon Amos]

I am grateful to the Minister; I will give him an opportunity to move on to our amendment 14, which I hope he agrees is in the spirit of that approach. I sympathise with the point made by the shadow Minister, and I understand the qualitative difference with a site-by-site approach, in which outcomes may more easily be predicted than in a nation-wide or region-wide approach. Does the Minister agree that wording that retains “are likely to” but introduces “significantly” raises the bar in a way that is in tune with the Government’s approach in the Bill?

--- Later in debate ---

[Matthew Pennycook]

I thank the hon. Gentleman for that intervention. Without in any way denigrating the amendment tabled by the hon. Member for North Herefordshire, the hon. Gentleman’s amendment is a subtler way of attempting to constructively suggest how the Bill might be improved, but we still think it is problematic, for the following reasons. It would apply a higher threshold to the improvement test in clause 55 —namely, that measures are likely to be sufficient to “significantly” outweigh the negative effect of development.

The addition of “significantly” into the improvement test would mean that measures would need to be likely to significantly outweigh the negative impact of development, and that would require more than a marginal improvement. It would also introduce uncertainty as to what could be classified as “significantly” outweighing the negative impact—as well as, I might add, an associated risk of legal challenge.

In that sense, in seeking to press EDPs to deliver far in excess of the impact that arises from development, amendment 14 risks undermining the efficacy and placing an undue burden on developers, notwithstanding the legal risk I have just mentioned.

[Gideon Amos]

Does the Minister know that the same “significant” test under the Environment Act 2021 has not been subject to a single legal challenge?

[Matthew Pennycook]

I am not sure how comparable they are. We are very mindful—this is something I was aware of before becoming a Minister, but it has certainly been brought home to me since—of the impact of specific wording in legislation. It is incredibly important.

In the interests of moving on, Dr Huq, I will probably finish here. I think we have had an extensive debate.

[Ellie Chowns]

rose—

[Matthew Pennycook]

I will give way to the hon. Lady one last time, then I will address the point made by the hon. Member for Taunton and Wellington.

[Ellie Chowns]

It is important: the whole point of Committee is to look at the detail and really get to grips with it.

Replacing “are likely to” with “will”, as my amendment seeks to do, would not make it necessary to conduct a site-by-site assessment. It relates to the wording that clause 55 applies to the EDP overall. It is about the degree of certainty that an EDP will deliver—that a habitat-wide approach to delivering environment improvements will deliver—as in subsection (5), in relation to

“the maximum amount of development to which the EDP may apply”.

With respect, the Minister said a few minutes ago that the amendment would effectively take us straight back to a site-by-site approach. That does not apply here.

The Minister cannot have it both ways. He cannot claim that this legislation will result in not just the maintenance of, but an improvement in, environmental protection while pursuing wording that explicitly and significantly weakens environmental protection. That is the point that the Office for Environmental Protection makes, it is the point that a number of nature protection non-governmental organisations have made, and it is contrary to the Minister’s stated intentions for the Bill, and contrary to what the public want. We can have development and nature protection together, but only if the legislation specifies that it must happen, not that it may possibly happen.

[Matthew Pennycook]

To be clear, in assessing that the amendment in question would result in the need for continued assessment on a site-by-site basis, I am referring to amendment 20. I am absolutely certain that that is what it implies. Amendment 119, which I think the hon. Lady has just spoken to—there is a slight risk of conflating the two—is problematic for other reasons. As I have said, it introduces an inappropriately high bar that will, in effect, make it incredibly difficult for the Secretary of State to meet the test.

There is, as I have said, a necessary degree of future gazing here, in terms of the change in approach. I certainly do not want to curtail debate, but I do want us to debate the other clauses in the Bill. I think I have firmly set out the Government’s position—why we think the Bill does achieve the very clearly stated intentions that we have set out—but I go back to the fact that we are very cognisant of the concerns in this area. We want to ensure that sectors have confidence in the operation of environmental delivery plans, and that is the reason— I am more than happy to debate it with the hon. Lady outside the Committee and at later stages of proceedings on the Bill—why we will reflect on the very specific points that the OEP has made on a number of clauses.

Amendment 97 agreed to.

Amendment proposed: 119, in clause 55, page 88, line 7, leave out “are likely to” and insert “will”.— (Ellie Chowns.)

This amendment would mean that an EDP would only pass the overall improvement test if it is certain that the proposed measures will outweigh any negative environmental effects caused by the development.

Question put, That the amendment be made.

--- Later in debate ---

[Paul Holmes]

Missing in action and not winning here. I know that the Minister is very keen that we expedite this Committee today because of the semi-final play-off with Charlton tonight. I hope that his team does well in that, because we would like to invite him down to the Den to watch a match between Millwall and Charlton, if Charlton are promoted. The Minister is always welcome down to the Den.

I turn to amendment 126, which is in the name of my hon. Friend the Member for Keighley and Ilkley (Robbie Moore). We absolutely agree with the Minister’s sentiments on EDPs, and we wholeheartedly agreed with the majority of what he said on the previous clause. We accept that EDPs will be a step change in environmental delivery across the United Kingdom.

One of our concerns, and the reason why we tabled amendment 126—I will come to amendment 127 in a minute—is that at the moment the legislation says that there will be two reviews into the EDP: one at the mid-point and one at the end. We simply want to see whether the Minister would entertain the idea of review periods at five-yearly intervals and a report on an EDP covering the previous five-year period. That is for a number of reasons.

First, with only two reports—one at the mid-point and one at the end—there could be long gaps during which important issues or shortcomings in implementation go unaddressed. In rapidly evolving environmental contexts, more frequent reporting would allow for timely adjustments and a greater responsiveness to emerging challenges. What would happen under the current proposals if a mid-term report showed a failure to deliver in conservation outcomes? Also, are the two required reports sufficient for long-term monitoring and public accountability?

We have a slight concern that the clause does not seem to specify the content or required level of detail in those reports. I hope that the Minister will be able to elaborate slightly on what he and the Secretary of State would expect in terms of the detail when a report is published. It is also important to state that although the Bill will have to meet equality legislation, it does not meet the standard for public accessibility or independent review. I hope that the Minister will be able to say something about that. Without these safeguards, the report could become a box-ticking exercise rather than a meaningful tool for transparency and continuous improvement.

I turn briefly to amendment 127, tabled in the name of my hon. Friend the Member for Keighley and Ilkley. Given what the Minister said in our discussion of the last clause about the impact that the wording will have on legal definitions and measurements if those were to be challenged, I do not intend to press amendment 127 to a vote. We think that the wording

“the local economy and community of the relevant area”

is not defined enough, so we will have to look at whether we need to tighten it up, bearing in mind what the Minister said about the language in the amendment tabled by the hon. Member for North Herefordshire. But I would like to press amendment 126 to a vote.

On amendment 127, I hope the Minister will say something about community benefits and the local economy in the relevant area. I hope he looks favourably on amendment 126, which stipulates more transparency and a clearer guideline for the process of reviewing EDPs. I look forward to his response.

[Matthew Pennycook]

Let me start by setting out our overarching intentions behind clause 57. Once an environmental delivery plan is made, it is crucial that Natural England can effectively monitor the performance of the conservation measures put in place and report on its progress. It is vital that key information, such as the performance of conservation measures and remaining development capacity under the environmental delivery plan, are made available. That is why clause 57 sets out that, as the shadow Minister just said, Natural England must publish reports at least twice over the environmental delivery plan period: once covering the period from commencement to its mid-point, then a second report covering the mid-point to the end date. The reports must be published no later than two months after the period the report covers, and Natural England may publish reports at any other time.

The reports are intend to demonstrate how an environmental delivery plan is progressing. They must cover specific topics—I hope this gives the shadow Minister some reassurance—including how much development has been agreed to, how that compares to the total amount of development that could be agreed to, what conservation measures have been implemented and the effect that they are having. The report must also specify the amount of money received through the levy and whether that is in line with expectations. That transparency will ensure that proactive steps can be taken if an environmental delivery plan is underperforming, and it will allow the Secretary of State to consider amending an environmental delivery plan to accommodate continued demand. I will come to clause 58 shortly.

Those reporting requirements are also important to ensure transparency as to whether delivery is aligning with the expected costs, and how the levy is being set and spent. By legislating for appropriate levels of reporting, we are ensuring that developers, local communities and environmental groups will be able to continue to engage with environmental delivery plans across their lifespan, ensuring they can be adapted as needed.

Amendment 126, tabled by the hon. Member for Keighley and Ilkley, seeks to require Natural England to publish a report at five-yearly intervals that covers the previous five-year period of an environmental delivery plan. I very much share the hon. Gentleman’s desire to ensure that Natural England appropriately monitors the performance of the conservation measures put in place and reports on the progress of the environmental delivery plan. However, as drafted, clause 57(1)(a) and (b) already provide adequate safeguards by requiring appropriate levels of reporting. Under the existing drafting, Natural England is required to produce reports for each EDP. As I have set out, the first report will cover the start date to the mid-point, and the second will cover the mid-point to the end date of the plan.

As the maximum length of an environmental delivery plan is 10 years, the latest a report will be published is in year five, and then year 10. As such, the proposed requirement to provide a report every five years would not add further value. Where the duration of an environmental delivery plan is less than 10 years, a prescriptive timetable for reporting could create duplication. However, we recognise the need to ensure that Natural England can tailor reporting, which is why clause 57(3) allows it to publish a report at any other time.

On amendment 127, which was also tabled by the hon. Member for Keighley and Ilkley, the Government share his desire to ensure that EDPs make a positive impact on the regions they cover, but we are clear that they should be judged first and foremost on their delivery of the environmental outcomes they are designed to achieve. That is why the legislation focuses on reporting on the environmental performance of EDPs. However, through subsection (6), the Secretary of State can publish guidance that Natural England must consider when producing a report. That gives the Secretary of State the ability to introduce new elements of reporting where appropriate.

The core focus of these reports is to provide the Secretary of State and the public with confidence that an EDP is providing the necessary environmental benefits to bring about an overall positive environmental outcome. Adding a new metric to cover the impact on the local economy and community, we believe, risks extending the scope of reporting and losing focus on the core objective of these reforms. Local economic benefits would, to a degree, be covered by the existing requirement to report how much of an EDP’s development capacity has been utilised. With that explanation, and the assurance that I always give the shadow Minister that I will go away and reflect on whether the wording is the best it can be, I hope he will withdraw the amendment.

[Paul Holmes]

I thank the Minister, as always, for his clarity on the amendments. He has said many times in Committee that he will be reflecting; I hope that he finds time to do things other than reflect. Given his assurances, I will have a word with my hon. Friend the Member for Keighley and Ilkley so that he might have a proper look at where in the Bill the timescales are already set out; that may be a lesson for cross-shadow ministerial working in the future. Given the Minister’s assurances, I will not press the amendment; as I have said already, we are content with what he said on amendment 127. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 ordered to stand part of the Bill.

Clause 58

Amendment of an EDP

--- Later in debate ---

[Paul Holmes]

I rise to speak to amendment 128, in the name of my hon. Friend the Member for Keighley and Ilkley—let us hope this one goes slightly better.

We understand the reason for clause 58 and for outlining the provisions for amending an environmental delivery plan. The clause clearly lays out the process the Secretary of State must go through to amend an EDP, which they may do either on their own initiative or at the request of Natural England.

The reason why my hon. Friend tabled amendment 128 is that, in some cases, the Secretary of State may choose to revoke an EDP. We will come to compulsory purchase orders later, but we would like to tighten up the wording of the Bill, so that when an EDP is revoked, the Secretary of State must seek to return any land obtained under a CPO for the purposes of that EDP to the original owner.

Will the Minister outline his thoughts on those proposals, which relate to cases where land has been CPO-ed and what happens to it afterwards? I hope he will see amendment 128 as a minor adjustment to the Bill and that he will give me some satisfactory answers, as he has this morning. We support the clause in general, but we just seek to tighten the language.

[Matthew Pennycook]

Let me set out for the Committee the intentions behind the clause, which gives the Secretary of State the power to amend environmental delivery plans in specific circumstances, where it is necessary to do so, and lays out the process that must be gone through.

The ability to amend may be required, for example, to reflect new environmental information or to extend an environmental delivery plan to accommodate additional development. The Secretary of State may amend on their own initiative or at the request of Natural England. It is right that environmental delivery plans can be amended, but our intention is that, where development has already contributed to the environmental delivery plan, any future amendment does not expose such development to requests for additional funding.

In providing a power to amend, we have also included proportionate requirements to consult on amendments. Crucially, however, in making an amendment to an environmental delivery plan, the Secretary of State will be bound by the same overall improvement test and will need to be satisfied that the conservation measures in the amended plan are likely to sufficiently outweigh the negative effect of development on the relevant environmental feature.

If the Secretary of State wishes to amend an environmental delivery plan, other than to amend only the charging schedule, they may first direct Natural England to consult on the environmental delivery plan as proposed to be amended. That allows environmental delivery plans to adapt and reflect changing circumstances, while ensuring that they are subject to sufficient scrutiny and oversight.

Turning to the amendments, I will begin with amendment 11, as set out by the hon. Member for Taunton and Wellington. I recognise the concern he highlights that, in a certain scenario, an amendment could be made that reduces the environmental outcomes and lowers the amount of protection. There are of course many important reasons why an environmental delivery plan may need to be amended, but we recognise that that ability to amend needs to be carefully considered. That is why existing clauses already offer a number of safeguards.

The central safeguard is that, where amended, an environmental delivery plan is still required to pass the overall improvement test. That means that, when amending an environmental delivery plan, the Secretary of State will not be able to reduce the amount of conservation measures without amending the scale of development that can rely on that environmental delivery plan.

[Lewis Cocking (Broxbourne) (Con)]

To clarify, if lots of environmental delivery plans are amended, who checks that Natural England and the responsible bodies in this process recommend the right things in the first place? I assume that we do not expect loads to be amended, but if plans consistently need amending because they are not producing the environmental benefits and the protection of nature they set out to, who will look overall at how many are amended in totality?

[Matthew Pennycook]

It will be for Natural England to determine what conservation measures are in place. There are reporting requirements on Natural England in terms of the overall body of EDPs. On the flexibility that is required—this speaks directly to the amendment from the hon. Member for Taunton and Wellington—it is unlikely that a Secretary of State would be able to reduce the number of conservation measures provided without reducing the development capacity of the plan, as that would not meet the overall development test. But there may be circumstances where the development capacity and the environmental conservation measures need to be reduced, and we need scope to be able to amend plans.

The hon. Member for North Herefordshire pressed me to refer to the concerns highlighted by the OEP about there being no requirement to consult on amended EDPs. As I have said, amendments to EDPs could be for a variety of reasons and could be extremely minor. In such cases, it would not be appropriate to require a consultation in every instance. Instead, there is provision for the Secretary of State to direct Natural England to consult on an amended EDP where expertise is required to inform its decision on the overall improvement test—for instance, if there is a material change to the development included or the conservation measures proposed. We think that that is a more proportionate and tailored approach to different EDPs.

[Ellie Chowns]

Where in clause 58 does it specify that consultation should or should not happen? I cannot see it.

[Matthew Pennycook]

I will happily write to the hon. Lady on where that is set out but, as per previous debates, I will not pre-empt our reflections on the OEP- specific points.

I again make the general point that, through regulations and guidance, further detail on many aspects of the Bill will be brought forward. However, the central point is that we do not think that it is proportionate or effective to require consultation on every amendment to an EDP, which in some cases could be very minor.

The central safeguard here is the overall improvement test that an EDP is required to pass. That means that when amending an EDP, the Secretary of State would not be able to reduce the amount of conservation measures without amending the scale of development that can rely on the EDP in the first place.

--- Later in debate ---

[Ellie Chowns]

rose—

[Matthew Pennycook]

It is the Chair’s job to say so, but I do not think the hon. Lady can intervene on an intervention. I thank the shadow Minister for his contribution. It would not be the best use of our time if I were to flick through the Bill while on my feet and attempt to find the relevant subsection. I will happily write to the hon. Member for North Herefordshire to set out how the requirements in clause 58 operate.

In designing the legislation, we have sought to avoid situations where the Secretary of State would be forced to revoke an environmental delivery plan where it would still meet the test of securing better outcomes for nature. A practical example of where it would be right to allow such amendment is where an EDP has proposed conservation measures to cover more development than is subsequently expected to come forward. There may be instances where the level of development is reduced, and then it may be appropriate to amend the EDP. In such circumstances, it would be right to amend and to reflect the reduction in the scale of development covered and the corresponding conservation measures. Amendment 11 would prevent that and would force the Secretary of State to revoke the environmental delivery plan or to keep the inaccurate plan in place.

In the event of a substantive change to the environmental delivery plan, both a public consultation and approval by the Secretary of State would be required. That would give the opportunity for environmental groups and local stakeholders to have their voices heard, and for Natural England to present evidence that provides assurance that the overall improvement test would continue to be met. With that explanation, I hope the hon. Member for Taunton and Wellington will agree to withdraw his amendment.

Clause 59 establishes the process for revoking an environmental delivery plan, and the circumstances under which the power will be used. When the Secretary of State approves and makes an environmental delivery plan, they are taking a decision at a specific point in time. However, we recognise the need to retain the ability to revisit this decision if necessary and ultimately to revoke an environmental delivery plan if the overall improvement test is no longer met.

[Lewis Cocking]

On a point of clarity, if the nature recovery strategy includes land or a scheme that is not next to or near the development where the developer has paid into creating that nature recovery strategy, who does the Minister intend to consult when these plans are changed? The people where the proposed nature site is, the residents of the development that contributed to it or both?

[Matthew Pennycook]

As I set out, there is a requirement to go out to public consultation when significant amendments are made. That would be a general consultation, in the sense that we are moving beyond a site-by-site assessment. Again, it is for Natural England to set out how the EDP will function across the whole area. To return to the point raised by the hon. Member for North Herefordshire, we do not think there is a requirement to consult in every instance, when some changes could be minor.

If an overall improvement test is no longer met, revocation is of course an option of last resort, and the Bill includes various safeguards to ensure that we do not reach that point. Those safeguards include the ability to deploy back-up conservation measures if monitoring indicates underperformance of the primary conservation measures, and the option to amend an environmental delivery plan or to reduce the capacity of development under the environmental delivery plan.

If, however, a decision is reached to revoke an environmental delivery plan, the legislation is clear on two fronts. First, development that has relied on the environmental delivery plan prior to revocation is not affected by the decision to revoke. Secondly, the Secretary of State will consider appropriate actions to ensure that the negative effect of development on environmental features, where a developer has already committed to pay the levy before revocation, is suitably addressed. That will provide certainty for developers that they can rely on environmental delivery plans, and certainty for local communities and environmental groups that the environment will be protected in all situations.

That links to Government new clause 66, which provides the Secretary of State with the power to make a compulsory purchase order in fulfilling their obligations when an environmental delivery plan is revoked. To deliver any appropriate conservation measures, it may be necessary to utilise powers of compulsory purchase. The new clause provides the Secretary of State with the necessary powers to ensure that they can fulfil that duty as part of the wider package of safeguards that underpin this new approach.

Similarly, Government new clause 72 ensures that the Secretary of State can take the steps necessary in the event of revocation, by granting them powers of entry when they are delivering conservation measures where an environmental delivery plan has been revoked. We recognise that such powers should be provided only with appropriate constraints, which is why the clause includes appropriate safeguards. With that explanation, I commend clause 59 and the new clauses to the Committee.

I should also touch on amendments 15 and 128. Amendment 15, tabled by the hon. Member for Taunton and Wellington, would raise the threshold for the actions the Secretary of State must take on revocation of an environmental delivery plan. The safeguards I have just outlined already ensure that we secure positive environmental outcomes. In seeking to require the Secretary of State to take actions to “significantly” outweigh the impact of development, the amendment, as per previous debates, would place an undue burden on the state to go beyond the overall improvement that sits at the heart of this new approach and that already delivers more than the current system. I hope the hon. Gentleman is sufficiently reassured on those safeguards and will not press his amendment.

Amendment 128 was tabled by the hon. Member for Keighley and Ilkley, and I hope that, in this instance, it is at least coherent internally, even if it is not aligned with the measures in the Bill. It would require the Secretary of State to seek to return land obtained through compulsory purchase orders, in the event of an environmental delivery plan being revoked.

The important point to stress is that nothing in the legislation would preclude the return of surplus land to former owners, their successors or sitting tenants in accordance with the Crichel Down rules. However, it would not be appropriate to require the Secretary of State to return that land to its former owner whenever an environmental delivery plan was revoked. The land would not be surplus if it were needed to secure conservation measures that may be necessary in the event of revocation. The amendment would reduce the ability of the Secretary of State to use land already secured under the environmental delivery plan to fulfil their obligations in the event of the EDP being revoked. With that explanation, I hope the shadow Minister will agree not to press his amendment.

--- Later in debate ---

[Paul Holmes]

No, Dr Huq, but on the assurances that the Minister gave in relation to amendment 128, which he said he expected we would take in the spirit in which he intended them, let me say that we will seek further clarification from him on CPO.

Clause 59 ordered to stand part of the Bill.

Clause 60

Challenging an EDP

Question proposed, That the clause stand part of the Bill.

[Matthew Pennycook]

The clause sets out the approach to challenging an environmental delivery plan. As the obligations discharged through an EDP will not be subject to separate consideration at the point of development consent, we recognise that it is important that EDPs are subject to appropriate scrutiny. Earlier clauses provided for consultation in respect of EDPs, and clause 60 provides a route to challenge them.

The route of challenge enables a claim for judicial review to be brought within a period of six weeks from the date that the EDP is published. The same six-week period for judicial review is available following any decision by the Secretary of State not to make an EDP or to amend or revoke one, or when the Secretary of State has decided not to amend or revoke an EDP.

The decisions of the Secretary of State and Natural England in preparing EDPs must be subject to scrutiny, and the clause sets out a clear, time-bound mechanism for parties to question those decisions. For those reasons, I commend the clause to the Committee.

[Paul Holmes]

I thank the Minister for that explanation of the clause. We have tabled no amendments, but we do have some questions for him.

We welcome the Government’s recognition that there should be the right to challenge an EDP—that is perfectly sensible and we appreciate it—and we welcome the fact that an EDP can be challenged by judicial review. We have all seen examples in our constituencies of large-scale projects in the planning system; in my area, although I disagreed with the people who were against an extension of Southampton airport’s runway, they had the right to go to judicial review. We also see—I declare an interest given what I said on Tuesday about Hamble quarry —communities wanting to assess whether they can take cases to judicial review. We absolutely welcome that provision in clause 60.

However, we have a concern about the six-week window. The Minister will know—and we have all seen these cases, for good and bad—that people who may want to bring a judicial review, or at least investigate one, cannot always afford it. They are not always well-organised or large-scale businesses with the resources to afford that very expensive and complicated process. We are concerned that such a short window may hinder meaningful access to justice, particularly for local communities, smaller organisations, or individuals or charities, which may lack the resources or legal expertise to respond quickly enough. I know that this is in legislation, but is the Minister confident that the six-week window is sufficient, given the potential complexity of EDPs, and will he look at reviewing it or consulting interested parties on it?

We have been very clear that we expect robust public engagement and clear communication obligations. Especially on something as substantial as an EDP, and bearing in mind the charities or small activist groups that may be affected by it and that may, whether we back the principle of EDPs or not, have genuine disagreements, I invite the Minister to outline his thoughts on the six-week period.

[Matthew Pennycook]

I appreciate why the shadow Minister raises that point. I am confident, for the following reasons. A six-week timeframe to challenge an EDP is in line with similar legislation on plan making. For example, the statutory consultation period for local plans is six weeks, as set out in regulation 19 of the Town and Country Planning (Local Planning) (England) Regulations 2012. We think it is an appropriate timeline, and there is precedent. We are trying to strike a balance between allowing sufficient time for an EDP to be challenged when it is made, amended or revoked—in all the circumstances that I set out—and not making the period so long that it will not allow for EDPs to be prepared and implemented as swiftly as possible, which is obviously the objective of the Bill. I hope that, on that basis, the shadow Minister is reassured.

Question put and agreed to.

Clause 60 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Gen Kitchen.)