Planning and Infrastructure Bill

Baroness Coffey Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[Lord Lansley (Con)]

On the assumption that the Minister is not going to speak to her amendments in the group at this point, I would like to speak to my Amendment 344.

The noble Lord, Lord Teverson, was talking about Clause 58 as it is in the Bill at present, but the effect of two amendments in this group—government Amendments 278A and 346E—is to delete the current Clause 58 and replace it with the new clause proposed in Amendment 346E, which will come before Clause 88. Just so that noble Lords are aware, that new clause more or less reproduces Clause 58, but extends it. The Minister will want to explain why that is the case. However, the point made by the noble Lord is exactly the same for the replacement text.

My noble friend Lady Neville-Rolfe, who tabled Amendment 275A in this group, is unable to be with us this morning. The purpose of the amendment is very straightforward and it will, I hope, be agreed on all sides of the House: when making an environmental delivery plan, regard should be had to small house- builders—indeed, so far as possible, account should be given and possibilities exercised to enable small housebuilders to conduct their business. The most important thing when the Government publish viability assessment guidance is that, as the Minister said in an earlier debate, the objective of the EDP is not to make development economically unviable. That being the case, this is an issue for smaller housebuilders, which find it most difficult to bear the burden of regulation and cost when preparing development. I hope that the Minister will be able to give reassurance on the point about small housebuilders made in the amendment tabled by my noble friend Lady Neville-Rolfe that the viability assessment guidance will specifically mention them and make allowance for them.

My Amendment 344, which is also about making an environmental delivery plan, makes a very simple point: at some point, Natural England needs to know in which potential developments it needs to consider making an environmental delivery plan. I do not see that in the Bill at the moment. The purpose of my amendment is to say that when local planning authorities are ready to put sites forward in, for example, a submission to the Secretary of State for the adoption of a local plan—not when they call for sites or are considering sites; this can be in guidance—they should notify Natural England of sites which have protected features, with protected sites or protected species involved. We know those sites are going to be pretty evident, so they should identify those themselves and notify Natural England.

I hope the Minister will say that this is intended to happen anyway, but it would be a good idea if it were expressed in the Bill, so that local planning authorities, which, of course, operate in their plan-making processes according to statutory timetables and statutory provisions, have a statutory requirement to notify Natural England about the potential need to make an environmental delivery plan. That is all I wish to say about this.

I just want to note something so that noble Lords are not surprised: when we get to Clause 58, we are going to take it out. But it is now that we are discussing what is effectively the language of Clause 58, and it is worth being aware that this is the case.

[Baroness Coffey (Con)]

My Lords, I shall speak to Amendment 242B tabled by my noble friend Lord Lucas. I strongly support the part of his amendment that inserts proposed new subsection (2A), but I am not so sure about proposed new subsection (2B)—(2B) or not (2B), that is the question he is proposing. Nevertheless, my suggestion to him is that I do not think anybody concerned about nature should then also try to limit growth; the two can be done hand in hand.

If Natural England or the Secretary of State for Housing need more resources or decide to subcontract to any designated person, that could be a private developer, which could come up with an EDP under the laws proposed by the Government. I am not saying that would be right, but people should be aware of the scope of where we are going. I would not support my noble friend if he re-tabled this amendment on Report to the full extent.

I think proposed new subsection (2A) is a very sensible approach on nutrient neutrality, the consideration of which is one of the issues that is particularly holding up aspects of development. This is the reason the Government have given more broadly. Of course, they have also latched on to a variety of things like jumping spiders and even ancient woodland, while still expressing concern for irreplaceable habitat. Nevertheless, we should have that very specific focus on what has been holding up the 1.5 million homes that the Government have promised to deliver by the end of this Parliament. We should keep focused on where these potential EDPs need to be, and that will keep Natural England focused as well.

[Lord Fuller (Con)]

My Lords, I shall speak to government Amendment 346E in the names of the noble Baroness, Lady Taylor, and the noble Lord, Lord Grantchester, and Amendment 275A in the name of my noble friend Lady Neville-Rolfe.

I approached this group with the words of the noble Lord, Lord Livermore, ringing in my ears from yesterday’s Oral Questions. He boasted how the Government’s planning reforms would cut away the bureaucracy to get Britain building. Perhaps he was thinking about that other planning Bill announced by the Chancellor in August. He could not have been thinking about the one before us today, because given the combination of Part 3 of this Bill, the involvement of Natural England, and the astonishingly long preparation process for EDPs, starting in Clause 58 but going on as far as Clause 61, it is difficult to see how any mitigation proposal envisaged by Part 3 can be completed in the three and a half years from now —and that for a Government who have only three and three-quarter years to run.

Even if Part 3 stands part of the Bill at the point of assent, it will take until the next Parliament before someone gets the keys to a new home that has been subject to an EDP. Perhaps someone should tell the noble Lord, Lord Livermore, that Part 3 does not work, and it will not get Britain building or the economy growing. I should know, because I have been in this space for the last three and a half years as the instigator and a person of significant control in Norfolk Environmental Credits Ltd, a company established and owned by all the planning authorities in Norfolk for the benefit of the local councils, taxpayers and economy. I know what I am talking about—this is another one of my specialist subjects.

I observe that government amendment 346E is a long one. I suppose we should be grateful that it recognises that the Bill as introduced was deficient, but it is incomplete. It articulates the problem and identifies the EDP participants, but it does not contemplate the earliest formative stages—the commercial, legal and contractual practicalities to put it into effect.

Let us think about the EDP processes that start in Clause 58. At the outset, it emerged on Monday that Natural England will report to the MHCLG Secretary of State, not Defra. That is quite a revelation. What technical knowledge exists in MHCLG to judge the veracity of the poor-science and unevidenced assertion referred to by the noble Lord, Lord Hunt, in today’s Telegraph, where he is reported to have said that “anti- growth” environment quangos are blocking developments on spurious grounds? How can MHCLG have the intellect and capacity to assess this spuriousness?

Our company in Norfolk aims to go beyond the desirability of cleaning up our rivers and devise commercial models that are legally robust and contractually certain, with a financial system that discounts the 80-year tail liabilities and makes the bridge between those who need to purchase mitigation and those who are prepared to provide it. I can tell noble Lords from personal practical experience how hard it is to devise a system to resuscitate the second-largest sector of our local economy—which has been placed in suspended animation for the past three and a half years—to provide the much-needed homes, affordable-homes infrastructure and mitigation in an area two-thirds of the size of our county.

My insight is that, before the provisions envisaged by this amendment are engaged, there are some fundamental principles to be established first. They should be set in statute, but they are not. It is envisaged that the EDPs will issue permits or licences. It is a critical point. A permit is something that is purchased and bought and has asset value. Noble Lords with long memories will remember the last time the state tried to introduce such permits to solve a problem: it created the madness of the milk quota system. By contrast, a local authority issuing licences provides for the point at which the mitigation is no longer required because, say, the local sewage treatment plant has been upgraded. Then the licence can be surrendered and issued again, with that second slice of revenue returned to the taxpayer.

At the drop-in session last week, Natural England’s representatives had blank faces when I asked them what they planned to sell to developers—permits or licences. They had not a clue. That illustrates the intellectual hole in that organisation. The risk of the permit approach is that, once issued to the builder of a new home, the nutrient neutrality permit is attached to that home and goes with the conveyance. That permit will have cost somewhere between £5,000 and £15,000. That is a pretty powerful incentive for the home owner to sell it on to someone else, so we find ourselves, as with milk quotas, sleepwalking into creating markets for tradeable assets, secondary markets, derivatives and everything else that history tells us happens when the state gets into the permitting business. The taxpayer misses out: that is the lesson from the milk quota fiasco.

By contrast, a licence is never owned by the developer or the landowner; it does not exist as an asset; contractually, it is tied to the property; and it can only be surrendered back to that property. The perverse incentive to sell it on and create secondary markets falls away. That is what we should be doing, but none of this fundamental design principle or parameter is contemplated by either Amendment 346E or the Bill.

Let us move on and think about the longevity of an EDP. It is proposed that an EDP lasts for 10 years—an assertion restated in the letter to noble Lords this morning, for which I thank the Ministers. But the tail liabilities are 80 years for nutrient neutrality and 30 years for biodiversity net gain, so I question whether a local planning authority can issue a permission if they are not sure what will happen between year 11 and year 80. I do not believe they can legally issue the permission. Perhaps the Minister will clarify that.

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[Baroness Parminter (LD)]

My Lords, as this is the first group, I am grateful that the noble Lord, Lord Lucas, stood up to remind us that this is a conversation, not a 10-minute monologue. As the noble Lord who spoke before me is new to this House, I shall tell him that civil servants cannot defend themselves in this Chamber. He arrived late at that meeting last week, so he was not there to have benefit the rest of us had of the information that they in good faith provided. I ask him in future discussions in this House to refrain from criticising people who cannot reply for themselves, and from making unnecessary comments about the Minister, who has shown to all Members that she is acting in good faith and will listen to our conversations—and, we hope, will come back on Report and offer us some changes based on the evidence.

[Baroness Coffey (Con)]

My Lords, I speak to Amendment 264A. My noble friend Lord Swire cannot be here. He has a particular theme running through on issues regarding pylons and he would appreciate a response from the Minister in regard to what he submitted. There is a broader point on how we are unfortunately going back to prioritising climate over nature, when they should go hand in hand. We hear comments like that from Ed Miliband, the Secretary of State for DESNZ, about how climate change is the number one threat to nature; I am afraid that that is not what the scientists say. It is in the top five, but is not number one. When we are considering changes in this Bill more broadly—my noble friend Lord Swire reminds us of aspects of energy infrastructure—we should have that fully in mind.

[The Earl of Caithness (Con)]

My Lords, I would like to look forward to the Government’s Amendment 346E and in particular subsection (2) of the proposed new clause, which says:

“Natural England or the Secretary of State must take account of the best available scientific evidence”.


I ask the Minister whether that is going to comprise part of the EDP.

In explaining the reason I ask that, I will refer to some of the conversations I had with the Minister on Monday’s debate and, in particular, to the email that I wrote this morning asking for a more detailed reply. In reply to my contribution, the noble Baroness, Lady Hayman, said that she had already spoken about getting scrutiny of the EDP. She said:

“I want to clarify that, before the EDP comes to the Secretary of State, it will be subject to proper scrutiny through public consultation”.—[Official Report, 15/9/25; col. 2003.]


It is helpful to have that, but could today’s Minister please enlighten the House about how that consultation will take place? Unless the information is cited in the EDP, it is going to be very hard to challenge. One of the complaints that I have about Natural England is how hard it is to challenge it when it comes to scientific evidence, because it hides behind the legal situation and says it is a precautionary principle: “Lump it, all of you”.

On my noble friend Lord Lucas’s amendment, I wonder if the Minister is satisfied about the present position with regard to Natural England and nutrients. My noble friend wants to limit the EDP to nutrient mitigation, and I think that is sensible and that the current situation is working well. Natural England’s nutrient mitigation scheme was set up in 2022 using £33.5 million of public money. This was based on its proposals to the Secretary of State. Since then, Natural England has spent £17.54 million setting up its off-setting scheme to generate 10,097 nutrient credits by removing 704 hectares of farmland from food production. When a new company in the private sector put forward a proposal to provide nutrient credits without taking farmland out of production, Natural England initially said yes; it then reversed its decision, as I explained on Monday.

Natural England claims that it does not make a profit from the sale of nutrient credits as they are priced at cost recovery. However, if one examines the figures, one can contradict this, because its internal costings show that a credit in Dorset costs £1,685 and that, when administration fees are accounted for, it would cost £1,938. However, it has been selling nutrient credits on the market at a significant mark-up of £3,250, plus a 10% administration fee. This suggests to me that Natural England is making a profit of up to £1,637 per nutrient credit, representing a profit margin of 45.8%.

In the letter that I received from the Ministers this morning, to which reference has already been made— I must say I am grateful for it; I wish we had had it before we began our proceedings on Monday—the last sentence of the third-from-last paragraph says:

“Once EDPs are made, we expect them to be delivered on a cost-recovery basis, while ensuring good value for money for developers by ensuring competition and innovation in the procurement of conservation measures”.


I have just shown that the nutrient market is not being operated at cost recovery by Natural England and that it is excluding the competition. How, when you have that existing situation, does the Minister really expect the EDPs to be offered on a different basis?

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to Amendment 290 in my name, which was tabled as Amendment 119 in the other place by my honourable friend Ellie Chowns. I agree with the noble Earl, Lord Russell, that the noble Lord, Lord Lansley, has clearly identified where this group has taken us, and we have heard powerful expositions from the noble Baroness, Lady Grender, and the noble Lord, Lord Gascoigne.

This amendment specifically addresses European sites, European marine sites, European offshore marine sites and Ramsar sites, so we are talking about the overall improvement test, but in a limited subset. Again, we are talking about the nature of the overall improvement test.

These sites are, of course, hugely precious and terribly important, and Ramsar sites are described as internationally important places. Amendment 290 says that the Secretary of State has to be

“satisfied that there would be no adverse effect on the integrity of the relevant site”.

That is part 1 of the test. Paragraphs (ii) and (iii) state some offsetting allowances if there is no alternative and if appropriate measures are taken, but the amendment sets a very high standard for these terribly important places, which is crucial for them.

I note that in Monday’s debate, the noble Baroness, Lady Hayman, talked about how, under Clause 89, Ramsar sites were previously protected by guidance rather than legislation. This is indeed legislation, but if the test is not sufficiently strong then it is not any kind of protection at all. Also on Monday, the noble Baroness said that SSSIs have protection under the Wildlife and Countryside Act. I have not had time to really absorb what this morning’s letter says. It refers to that protection, but I would be interested to hear from the Minister on how that interacts with the changes that the Government have made and how Clause 55 works.

It is worth focusing for a second on what we are talking about. When I think of Ramsar, I always think of Rutland Water. I am sure that many noble Lords have visited it and seen the amazing birds at that site—I am looking at the noble Lord, Lord Randall. I also think of the Inner Thames Marshes SSSI, which is part of the Rainham Marshes Nature Reserve. I think of that because I was there in 2018 on Hen Harrier Day, when we had the wonderful and amazing pleasure of a marsh harrier swooping over to inspect our event for defending their cousins. I can remember the sense of wonder and amazement in the crowd, many of whom were local people. It is important to stress how important those SSSIs are to nature but also to local communities. We might think, “That will always be all right. That will always be protected”, but in the 1990s, the site was a candidate location for a Universal theme park, which, happily, was not built.

[Baroness Coffey (Con)]

My Lords, while the top twitcher in the House of Lords is undoubtedly my noble friend Lord Randall of Uxbridge—although there may be other candidates, I am prepared to admit —I live near the Minsmere Nature Reserve, so what the noble Baroness, Lady Bennett of Manor Castle, referred to about marsh harriers is truly extraordinary. I tend to see them in close proximity to Sizewell, which shows that there is an element of how we can all try to live together in that regard.

Amendment 244 gets to the kernel of the issue that we are addressing with the overall significant improvement test; I strongly support the noble Baroness’s amendment. Other noble Lords have made important points, including those made by my noble friend Lord Gascoigne.

The Government’s amendment is very cleverly written. There was a legal case with the last Administration, where ClientEarth, Friends of the Earth and the Good Law Project managed to find that the then Government had an unlawful climate change action plan, and they had to be pushed back on that. That is the element of hope value—not in terms of land, but in hoping that the EDP is, in effect, good enough. Assuming that everything will work was not good enough in that case.

If this provision goes into primary legislation in the way it is now, without further consideration of some of the other amendments that have been tabled by noble Lords, that will give the Government, frankly, a very good “get out of jail” card, because it is primary legislation and the courts will not be able to override it on the basis of the criteria being set out today. On Report, we should come back and consider with all noble Lords who have looked at this carefully how we try to make watertight what we want to do with the significant improvement test.

I will come back to the whole debate about what a Secretary of State is in the Bill, because I have tabled an appropriate amendment, which will be considered in a later group—I think in group 19 or 20—that will be started by the noble Baroness, Lady Young of Old Scone. There is something around this whole area that we are getting into—I am not going to stray into the mitigation hierarchy—that is about the environmental principles public duty that applies to Ministers. It does not apply to arm’s-length bodies; it applies to any policy considering legislation. It applies to any strategies and to any framework. But, critically, it does not apply in itself to any planning application consideration. So that is why we need to make sure that we get this bit of the Bill right.

As far as I am aware, although on GOV.UK it says that the environmental principles policy statement was under the last Administration, it should still be in force. I would like confirmation from the Minister that that is still the case. I point out to her that if it is not in force, the Government would be acting in an unlawful way. So in consideration of this, there may be further questions coming, whether through this or other legal routes, specifically about how, in constructing Part 3 of the Bill, the environmental principles policy has been applied to achieve the particular outcome that is desired and, potentially, about other aspects of how it is complying with the Environment Act in its own right.

It is worth us having some careful consideration before the next stage on what we all want the outcome to be. I am confident that the Government want, despite a lot of the speeches and rhetoric, to make sure that we have nature thriving.

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[Baroness Parminter (LD)]

My Lords, I have been pleased to sign a number of amendments in this group, because the issue of the mitigation hierarchy is a big outstanding area of concern for those of us who want EDPs to be part of packages in the future but are concerned about it. The noble Baroness, Lady Young, and the noble Lord, Lord Gascoigne, have made the case, as has my noble friend Lord Russell, for our concern that the mitigation hierarchy does not remain for EDPs but does for other planning obligations.

I have one question for the Minister. Both Ministers provided a letter today that said that,

“an EDP can include planning conditions to avoid or reduce impacts on the site … before they can access the benefits of an EDP”.

I can see that that is an attempt to soften concerns that the mitigation hierarchy does not apply for an EDP, but I think the Committee needs quite a bit more information in the Minister’s summing up, and certainly before Report, about what exactly that means. I note that the letter says that an EDP “can”, not that an EDP “must”. I do not see how it is going to work.

The helpful chart drawn up by the noble Baroness, Lady Willis, and the noble Lord, Lord Krebs, makes it clear that, for an EDP, there is absolutely no compulsion for an assessment of the environmental impacts by a developer of the site that they are going to develop before they can go straight to an EDP. How can you have planning conditions for a site where you do not even have an obligation to identify what the environmental impacts are?

We have heard from meetings with civil servants that they have been drawing up plans for two EDPs on nutrient neutrality and newts, so they must have some idea of what the type of planning conditions might be. I would like a bit more information about how the planning condition process might work and what it might be in order to give noble Lords more information before we get to Report. I have to say that I feel that being able to move straight to pass “Go” and avoid the mitigation hierarchy is a massive hole in this new system. As my noble friend Lord Russell has said, other parts of government have managed to find ways to incorporate it in equally important areas of infra- structure development.

[Baroness Coffey (Con)]

My Lords, I thank the Minister for confirming earlier that the environmental principles policy is still in place. That matters in this particular group in terms of the mitigation hierarchy. When the Bill came through, the OEP expressed significant concern about the weakening of the mitigation hierarchy. I am not aware of its opinion on subsequent government amendments in that regard, but, of the five principles set out in the Government’s policy statement, “prevention” is a key element and “Rectification at source” is another one of the five principles.

We are trying to make sure this is crystal clear in the Bill and locked in because of comments made by the Minister in the Commons about flexibility. It is fair to say that, frankly, Clause 66(3) completely sets aside the mitigation hierarchy; to use the phrase of the noble Baroness, Lady Young of Old Scone, it is cash for trash —basically, you can do what you like if you are prepared to pay for it. In that regard, it matters that the Government think again and put this in place in primary legislation. Despite that, Amendment 256ZA in particular is very useful where it talks about “reasonably practicable”. That is an element that, if necessary, can be tested in the courts in due course. But we need to correct this in this House, putting it very firmly instead of saying, as in the words of the Minister, “Our flexibility is fine”.

[Baroness Grender (LD)]

My Lords, Amendment 340 proposes a new clause after Clause 87. This amendment would enshrine clear duties on both the Secretary of State and Natural England to take all reasonable steps to avoid, prevent and reduce significant adverse environmental effects when exercising their functions under Part 3. It would require them to enhance biodiversity to safeguard designated sites—such as the European and Ramsar sites that we have heard mentioned in the previous group—except in exceptional cases, and to protect irreplaceable habitats such as ancient woodland and veteran trees.

I thank the noble Baroness, Lady Freeman, who has signed the amendment. She sends her apologies and says:

“This amendment provides a great opportunity for the Government to clarify the core commitments to existing nature protection that they have stated should remain in the Bill. This amendment is an essential clarification and strengthening of legal duties that already underpin environmental protections but risk being diluted under the new framework established by Part 3. While the Bill aims to streamline development and introduce strategic fund-based mechanisms for environmental management through both EDPs and the NRF, there have been legitimate concerns that existing protections might be weakened or circumvented”.

So this amendment does not obstruct development. It ensures that decision-makers uphold critical environmental principles consistently and transparently. It explicitly requires the Secretary of State and Natural England to take all reasonable steps to avoid causing significant harm, applying the fundamental mitigation hierarchy that we have already talked about and which prioritises avoidance first, minimisation second and compensation only as a last resort.

The amendment’s emphasis on enhancing biodiversity aligns directly with the Government’s own Environmental Principles Policy Statement, which guides all departments to embed environmental protection in their decision-making, and it places biodiversity improvement alongside harm avoidance as a clear statutory duty. Of particular importance is the protection afforded to irreplaceable habitats, as I have mentioned already. These are a unique and fragile ecosystem systems comprising just 2.5% of UK land yet supporting disproportionately rich biodiversity, and the NPPF rightly sets the loss of such habitats as a matter to be refused unless wholly exceptional reasons apply and compensatory measures are in place. Embedding this principle therefore in primary legislation strengthens the hand of conservation and local communities.

The amendment also correctly restricts where significant adverse effects on European and Ramsar sites may be permitted—only where justified by imperative reasons of overriding public importance—and where compensation will occur. This follows long-established environmental law and international obligations, and provides clarity. I look forward to hearing the Minister’s response.