My Lords, we return to the substantive consideration of Part 3 of the Bill and the nature restoration fund, with this first grouping considering amendments that relate to the underlying requirements of an environmental delivery plan.
In response to the question from the noble Lord, Lord Roborough, about the purpose of Part 3, we know that the status quo is not working. Environmental assessments and case-by-case negotiations of mitigation and compensation measures often slow down the delivery of much-needed housing and infrastructure. Meanwhile, the condition of our most important habitats and species has declined over a sustained period. By taking a more strategic approach to the restoration of protected sites and species, we can deliver improved environmental outcomes while reducing planning delays for the housing and infrastructure that our communities need.
The noble Lord asked me a question about the number of houses subject to nutrient neutrality that will be unlocked at Royal Assent. We are very clear that such environmental obligations can be discharged only where a robust and scrutinised EDP is in place. This is the right approach to ensure there is a credible plan that will deliver the better environmental outcomes that we need.
Amendment 130, tabled by the noble Baroness, Lady Willis, has captured the sympathy of some in this House who support the strategic approach of the NRF but are concerned about this approach being used where it is not appropriate. However, we have always been clear—and the legislation is explicit—that the Secretary of State can approve an EDP only where it is shown to materially outweigh the negative effect of development. This is not a throwaway judgment of a Secretary of State but must be a judgment based on an ecologically sound and robustly scrutinised EDP, with Natural England providing a statement as to whether they believe the EDP can meet this high bar. As the noble Baroness will know, the scientific basis of the evidence provided to the Secretary of State was clarified in a government amendment. A Secretary of State simply could not sign off an EDP that did not stack up—and if they ever did, then the Bill provides that such a decision could be challenged via a judicial review.
In capturing a range of environmental features that could be addressed through an EDP, the Government are not seeking to suggest that EDPs will come forward covering each of these features but simply that we should be able to bring forward EDPs where science supports the case and the evidence would allow the Secretary of State to approve the EDP in line with the overall improvement test. Where the science does not support it, an EDP could not be made, but to limit EDPs in the way the amendment suggests would be to close off the potential that EDPs offer to deliver more than the current system and help support the recovery of protected sites and species, rather than merely offsetting the impact of development.
I am afraid that the Minister has failed to understand that the amendments I have proposed, following the debate in Committee, are directed towards only the environmental feature, and the negative effects associated with that environmental feature, which is the subject of the EDP. She is suggesting that I am widening it out to other features. I am not; the amendments address only that feature.
I am sorry if I misunderstood, but that may be due to confusion around the wording. It seemed that the amendment was trying to widen that out. As I said, any impact not addressed through the EDP is subject to a separate assessment. Therefore, it would not need to form part of the EDP itself.
I have left Clause 55(1)(a) where the Government left it, which means that we are concerned only with the environmental feature which is the subject of the EDP. Her entire argument against my amendments is around the proposition that I am trying to widen it out to other things; I am not. I am simply saying that, if there is a negative effect associated with the environmental feature derived from that development, it should be identified in the EDP.
The very nature of the EDP would do that anyway, because the action taken by the EDP must materially outweigh the impact of the development. If that is what the noble Lord is trying to say, I can confirm that that is the purpose of the EDP in the first place. I will continue now.
As set out in the Member’s explanatory statement, Amendment 132, tabled by the noble Lord, Lord Markham,
“seeks to encourage debate on the proportionality of conservation measures included in an EDP”.
In doing so, the amendment proposes that EDPs should consider the monetary value of the plants or animals the conservation measures would support, to ensure that conservation measures are proportionate. As the noble Lord will be aware from the debates to date, EDPs will be required to materially outweigh the negative effects that development would have on a relevant environmental feature, be it a feature of a protected site or a protected species. That may include multiple plant species of varying abundance. Similarly for protected species, an EDP would address these impacts at an appropriate population scale.
The scale of conservation measures required will be determined by the scale of impact from the development, with the levy rate being set to ensure that sufficient measures are delivered to meet the overall improvement test. In setting the regulations that will govern the nature restoration levy, the Secretary of State must aim to ensure that the levy does not render development economically unviable, but the levy must be sufficient to deliver the necessary conservation measures in line with the overall improvement test. That will ensure that the levy is set at a rate that delivers for both nature and development, with developers in all but exceptional circumstances being able to choose whether to use an EDP or whether to address these impacts and secure the necessary measures themselves under the existing system. I hope that, with this explanation, the noble Lord will not press his amendment.
My Lords, I am grateful to the noble Baroness, Lady Willis, for the introduction of her Amendment 130 and to those who spoke so convincingly in her support. I also thank the Minister for her response to these amendments, particularly the clarifications around the issues addressed by Amendment 122.
As I feared, the Government remain intransigent on the big issues and so our mind remains resolved. Should the noble Baroness, Lady Willis, choose to move Amendment 130 to a vote, our Benches will be in support. In the meantime, I beg leave to withdraw Amendment 122.
130: Clause 55, page 91, line 38, at end insert—
“(2A) An environmental impact identified in an EDP may only affect nutrient neutrality, water quality, water resource or air quality.”Member’s explanatory statement
This amendment seeks to limit the application of an EDP to issues where approaches at a strategic landscape scale will be effective.
My Lords, I thank all those who have contributed to the debate, and I thank the Minister for her response. However, I did not find her arguments reassuring, and I therefore wish to test the opinion of the House.
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I want also to respond to some of the noble Baroness’ questions. First, on the mitigation hierarchy, Natural England will always consider the mitigation hierarchy when it develops EDPs. It is an important approach when planning for biodiversity, as it is generally more environmentally effective and cost efficient to protect what is already there than to replace it. However, it is not always the case. The flexibility provided by the Bill will allow for those cases where, in Natural England’s expert judgment, the strict appliance of the mitigation hierarchy would lead to suboptimal outcomes, and only then, and where money could be spent far more effectively to achieve better outcomes for nature.
Secondly, the noble Baroness asked me about process. EDPs will not require additional assessment. Natural England will carry out assessments and surveys, and developers will no longer have to do that for the features in the EDP.
My noble friend Lady Young asked about the European conventions. The Bill does not repeal any existing legislation and will not weaken the UK’s continued support for and implementation of any of our international commitments. We are committed to the EU-UK Trade and Cooperation Agreement and its provisions which ensure that mutual high standards are protected. EDPs will ensure better environmental outcomes that go further than current legislation, which simply offsets harm. Money from the NRF is ring-fenced for nature under clauses in the Bill.
I am conscious that the NRF has not had the easiest genesis, but the Government have shown that they are listening, and the legislation demonstrates a real commitment to breaking from a status quo that has, at best, overseen the managed decline of our most valued protected sites and species. With this explanation, I hope the noble Baroness feels able not to move her amendment.
Amendment 201, tabled by the noble Lord, Lord Roborough, would provide the Secretary of State with broad powers to manage the effects of nutrients in water. This draws on the amendments tabled by the previous Government during the passage of the Levelling-up and Regeneration Bill, which were rightly defeated by this House.
While we share the noble Lord’s desire to address nutrient neutrality, we cannot simply rely on broad powers and the promise of action. The nature restoration fund creates a clear path to addressing this issue based on credible evidence, a robust and tested EDP and the legal guarantee that funding will be secured to ensure that conservation measures deliver environmental improvement. Granting the Secretary of State such a broad Henry VIII power would raise not only questions but serious risks as to how such a power could be used.
Amendment 122, also tabled by the noble Lord, Lord Roborough, would provide the Secretary of State with a power to issue guidance relating to the making of an EDP and require Natural England or any other body carrying out functions under this part to comply with such guidance. I recognise the importance of the matters the noble Lord raises, including in respect of agricultural businesses, food security and land that communities really value. The Secretary of State is already able to make guidance on any matter relevant to the making of an EDP, which would naturally include the important matters raised in the amendment.
On the issue of compulsory purchase raised by the amendment, as it is ultimately for the Secretary of State to make an EDP and to authorise Natural England’s use of compulsory purchase powers, if the Secretary of State is not satisfied with the way the EDP has been drafted, they may simply choose not to make the EDP. Similarly, if the Secretary of State is not satisfied with the way Natural England is proposing to exercise its compulsory purchase powers, they may simply choose not to authorise the exercise of the powers.
Amendment 129, tabled by the noble Lord, Lord Lansley, would require EDPs to identify all environmental impacts from the development to which the EDP relates, on the environmental feature which is the subject of the EDP. As we have said throughout these sessions, EDPs are targeted plans to address specific impacts from development on identified environmental features. These are not a replacement for wider assessment or intervention but a way to allow specific impacts to be addressed through a more strategic approach. While Natural England will of course be alive to other impacts, the focus of the EDP must be on the specific impact, as it is only that impact and the associated environmental obligation that are being discharged through the EDP. We have been clear throughout that anything not covered by an EDP will be considered and addressed through the existing system. For that reason, it would simply add burden to an EDP to require Natural England to identify all impacts where the EDP itself is tasked with addressing only specific impacts.
Amendment 128, also tabled by the noble Lord, Lord Lansley, would require an EDP to identify all environmental impacts that may be expected as a result of the development to which an EDP relates. As I mentioned in Committee and have just repeated, EDPs are targeted plans, and the Government are clear that an EDP will modify existing obligations only for identified impacts and where the EDP itself can demonstrate how the conservation measures will materially outweigh the negative effect of development on the specific environmental feature. Any impacts not addressed—
Finally, Amendment 203, tabled by the noble Lord, Lord Roborough, would require the preparation of a report by the Joint Nature Conservation Committee on the consolidation of the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017 as they relate to planning. I appreciate that the dual systems of the habitats regulations, which cover habitat sites and include the HRA process, and the Wildlife and Countryside Act, which covers SSSIs, can appear complex. However, in practice, there are integrated processes which address and manage this complexity. These processes are well understood by practitioners, and while the Government will always look for opportunities to improve processes, the amendment risks creating uncertainty that may delay development and presupposes that consolidation is necessary and desirable. At this time, we do not consider that such a report is necessary, but even if it were, it would be a legal rather than ecological exercise, which would fall outside the JNCC’s area of expertise. Given this explanation, I hope that the noble Lord will not press his amendment.