Planning and Infrastructure Bill

Lord Cromwell Excerpts

Committee stage
Wednesday 17th September 2025 Lords Chamber

[Lord Roborough (Con)]

My Lords, in moving my Amendment 253, I will also speak to my other amendments in this group. It is an embarrassment that in our small, wealthy island nation, there are, according to APHA, over 2,000 non-native species, of which 10% to 15% become invasive and pose a serious threat to our biodiversity and environment. We must make intensive efforts to control and eliminate those species to protect our own besieged biodiversity.

The grey squirrel has pushed the red squirrel out of much of our woodlands and now destroys countless young trees every year, making it almost futile to plant native broadleaves in my home county of Devon and many other parts of the UK. What progress is being made with the research into the sterilisation of grey squirrels, and when will that treatment be expected to be made generally available?

Himalayan balsam and Japanese knotweed have invaded our river systems, displacing our native flora and upsetting the ecology for animals and fish living in those waterways. I commend the Tamar invasives group for the work it has done in controlling these invasive plants under the auspices of the Tamar Valley National Landscape in that area. What similar work is being done elsewhere in the country to eradicate these species?

Signal crayfish are present in many waterways and reservoirs, spreading disease that kills our native crayfish and predating on our migratory and freshwater fish species. Muntjac deer are spreading rapidly across our country, feeding on our crops, damaging fences and stripping the bark off young trees. Numbers are out of control.

The purpose of these amendments is twofold. The first is to raise awareness of the damage that these and other species are doing to our environment. The Government need to change attitudes to these animals, birds and plants so that everyone in this country takes steps to eliminate them from their gardens, farms and land.

The second purpose is equally serious. I cannot see how any environmental delivery project funded by this new nature restoration fund can be judged to be successful if non-native invasive species are still present on the land within the project after five years. It simply does not make sense that the EDP can have done an acceptable job on the site if those species remain in place, attacking our much-loved trees, brown squirrels and aquatic species.

Should the Committee support this amendment, I fear there is a risk that Natural England could then choose sites that are not infected with those species. Can the Minister assure the Committee that would not be the case? I think that all who know and love our beautiful countryside appreciate how difficult a task it would be to achieve this even in these limited areas, but it is not impossible, and it is crucial. I look forward to the noble Lord, Lord Cromwell, introducing his own amendments. I beg to move.

[Lord Cromwell (CB)]

My Lords, I start by confirming my support for all three of the amendments in the name of the noble Lord, Amendments 253, 296 and 297. However, I caution the use of “non-native”; it is the invasive aspect that is the problem. What could be more English than a rose? What could be a more typical English fruit than an apple? Both of them originate from central Asia—they are not natives. However, I entirely take the point about invasive species.

Amendment 60, already debated, referred to guidance on planting along highways. There was much discussion about trees and wildflowers. I enjoyed reading what type of tree the noble Lord, Lord Moylan, might represent, which might repay people who want to look it up in Hansard. One plant that grows along our highways which was not mentioned in the earlier debate is ragwort, the bright yellow flowering plant seen everywhere alongside our highway network. Through lack of enforcement of existing legislation, this invasive plant has become a menace to the environment, animals and agriculture, and action to control it is long overdue. Once it has flowered, ragwort produces seeds that, like dandelions which people may be more familiar with, come with a downy parachute which means they float far and wide on the breeze across the countryside and into farmland, where they take root, produce more seed, and so on.

Ragwort is poisonous to livestock, and it is not advisable for people to touch it with their bare hands, although I spend many unhappy hours pulling it up myself with my own bare hands, as I am sure many other Members do. Grazing animals leave it alone while it is growing, but where a field is cut for hay or silage, as is the case on many grassland farms, it gets incorporated into the bales, animals cannot detect it, and they are poisoned by it. Finally, areas set aside for environmental benefits, such as margins for wildflowers, quickly become choked with ever-expanding stands of ragwort.

So much for the biology; what about the law? Ragwort is what is called a notifiable weed, and landowners and occupiers have a legal obligation to control and remove it, particularly if it is spreading, causing a nuisance, or posing a risk to livestock. The Weeds Act 1959 and the subsequent code of practice on how to prevent the spread of ragwort outline these responsibilities. Failure to comply can lead to legal action, and/or the relevant authorities can issue a clearance notice requiring action to be taken to remove it. Unfortunately, this has not been enforced for many years.

As part of my research in tabling this amendment, I asked a Written Question about notices or prosecutions in the last 12 months. I was informed:

“In the past 12 months, no notices in relation to ragwort control have been served to National Highways, and there have been no prosecutions under the Weeds Act 1959 or the Code of Practice”.


I would bet that we could go back a lot more years than the last 12 months and the result would be exactly the same.

That is not good enough. Defra and the Environment Agency need to enforce the existing law and regulations. The Bill will create new areas of land controlled by a quango. This amendment specifically identifies this problem plant and requires that at least in the development of new infrastructure, proper controls are carried out, and—my favourite theme—enforced where necessary. That would be a start.

[Lord Lucas (Con)]

My Lords, I would like to speak on behalf of the Cinnabar moth, a very handsome creature which is nourished on ragwort. Ragwort is an ordinary part of the downland scene. It is an entirely natural, native plant in its right place. I agree that it can become a pest in some other places, but our downland is grazed by horses. They have the sense not to eat the thing, and we do not make hay out of it.

It is a plant that, in its ordinary place, you can work your way around. It is where someone leaves a field derelict, and it becomes a sea of yellow and the seeds are drifting everywhere, that something needs to be done about it. I agree with the noble Lord, Lord Cromwell, that we should be better, but we should not be too frightened of ragwort. It is not hugely disastrous for agriculture or livestock, in my experience of it.

[Lord Cromwell (CB)]

I invite the noble Lord to spend a series of weekends with me and my family pulling up ragwort across the organic grassland, which we bale for organic dairy farmers. After that, he may consider that ragwort is fine in his backyard but that, for those who are trying to feed the nation, it is a serious problem. Our livestock do leave it alone—he is quite right that they have the good sense to eat around it—but once it is baled and dead, they eat it.

[Lord Lucas (Con)]

The prospect of spending weekends with the noble Lord, Lord Cromwell, seems well worth some ragwort pulling.

I also sound a note of caution in respect of the amendments tabled by my noble friend Lord Roborough, as they are drafted, particularly Amendment 296. Animals such as the grey squirrel and the muntjac come and go as they please; you cannot eradicate them from an area. You can try pushing them back, but we are stuck with them until we develop a national solution. You should not penalise an EDP because it happens to be infected by them.

Also, are we referring to the list that is generated by retained EU regulation 1143/2014 when we are referring to invasive non-native species? This list consists mostly of things that are troublesome in much warmer climates. A lot of things that cause problems for us, such as sycamore, would not be included at all.

I am cautious. It is hard to eliminate invasive species from waterways. Unless you control the whole waterway and have a really integrated, careful and expensive campaign over several years, it is very difficult to do more than just reduce. By and large, we should learn to live with these invaders. I say this as a lifelong botanist. We have; we enjoy and celebrate the thousands of plants which have come to live here, mostly courtesy of gardeners, and which play a small part in the native flora.

There are very few plants that cause a huge problem in terms of invasiveness. Animals can be difficult. Insects are difficult but really hard to control. Anyway, when it comes to the flora of this country, we should recognise what we mean by “native”. If we go back to the ice ages, you are talking just about birch and a bit of Scots pine. The ice ages crushed the European temperate flora against the Alps. As a result, we have a really depleted flora in Europe compared with China or North America, which both had southern refuges that their flora could get to. You really see that in the case of forestry; we have 30 woody species in this country. Every year or two, a disease threatens another of them. I am starting to lose my mature oak trees to acute oak decline, having lost a lot of ash and all the elm.

A healthy temperate woodland has hundreds of species in it. That a few are finding their way back from gardens, diversifying and getting us back to a level of diversity that we ought to have is to be celebrated. Instead of this fuss about what is non-native, let us celebrate the immigrants. Surely the party opposite agrees with that.

[Lord Cromwell (CB)]

Without referring back as far as the ice age or taking as long as that to talk about it, my amendment relates specifically to one plant. Is the noble Lord suggesting that we do not apply the existing legislation? That is what my amendment seeks—merely to apply the law as it stands now through enforcement, not to create new law.

[Lord Lucas (Con)]

My Lords, where it is troubling serious agriculture, yes, we should enforce.

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[Lord Cromwell (CB)]

On a lighter note, the noble Lord introduced the issue of hereditaries; many of us are indeed invasive species as we came over with the Normans.

[Lord Sentamu (CB)]

I say to the noble Lord, Lord Lucas: does he want to accept these invasive plants? What about Japanese knotweed, which is in the schedule of wildflowers and illegal to perpetuate? Once it takes root, it is very difficult to get rid of. If it is cut, tiny things will spread. Is he still in favour of Japanese knotweed?

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Tabled by

[Lord Cromwell]

253B: Clause 55, page 92, line 29, at end insert—
“(9) In designing, creating, implementing, monitoring or enforcing any EDP, Natural England, or any other body undertaking some or all of these functions, must ensure that legal obligations concerning notifiable weeds under the Weeds Act 1959 and the associated Code of Practice, including ragwort, are publicised, observed and enforced, including ensuring that all reasonable steps are taken to remove and destroy such plants.”Member’s explanatory statement
This amendment clarifies the legal obligation on landowners and occupiers to report, control and remove notifiable weeds on land acquired for an EDP. The amendment specifically refers to ragwort, which is poisonous to livestock and has spread rapidly in recent years.

[Lord Cromwell (CB)]

I hope that Defra will take into account the need to enforce the existing legislation when public bodies are running EDPs, because many public bodies are not doing so at the moment. On that basis, I do not move my amendment.

Amendment 253B not moved.

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[Lord Gascoigne (Con)]

I know. There is nothing to prevent the EDP deeming that the money raised should not go to replace or improve something near what I have lost, but rather could be spent in beautiful Lancashire. As a result, while my family up there may gain from that benefit, people in Surrey would lose the benefit twice. They lose the site within scope of the development, and they lose the money that should be there to rectify that loss.

Finally, I will speak to Amendment 308A, which seeks to prevent other departments, but mainly the Treasury, effectively siphoning off money for non-related uses. Clause 71(5)(d) allows for Natural England to pass moneys collected under the levy to another public body. Indeed, it goes so far as to say that it would require Natural England to pass it to another public authority. A little later, the rather gloomy entry of Clause 72(7) says:

“The regulations may permit or require a public authority to collect any nature restoration levy charged by Natural England”,


the implication of which is worthy of debate in itself. Which public body do the Government foresee taking on this role if not Natural England? I will leave that to others if they wish to go down that route.

This amendment protects the funds to wherever these moneys may go. It means, ultimately, that their original purpose shall remain. I think everyone can unite around this, from sceptics of the Bill to those supporting it, because it means that money for nature should remain for nature and not be subsumed into a general pot. I am afraid I have the scars from working in government and know all too well what happens if things are not ring-fenced clearly.

As an aside, there is a precedent here. The other day—I cannot remember when—we discussed the community infrastructure levy, and the 2010 regulations include a ring fence to ensure that the income spent is on infrastructure, no matter who is doing the spending. That is in Regulation 59, if noble Lords wish to check. Ultimately, the nature restoration fund needs to be protected and clearly defined in the Bill, and not allowed to be open to interpretation or postponed to secondary legislation.

The remaining amendments in this group in my name, namely Amendments 310, 312 and 314, all seek to tighten further the accountability and transparency around any decision by Natural England to fund its own administrative activities from the nature restoration fund.

[Lord Cromwell (CB)]

It was a pleasure to follow the last two speakers, as they adroitly picked their way through the thickets of these various amendments. I will briefly touch on theirs before getting to mine. As regards Amendments 256 and 313, where land is CPO’d from its owner, it is manifestly unfair to include in the levy the cost of acquisition. It is reminiscent of the victim of an execution being made to pay for the bullet. As regards Amendments 307, 312 and 314, I support clear limits being set on the ability of quangos—particularly quangos in a monopoly situation—being able to overegg their charges.

Amendment 307A in my name requires Natural England to provide a proper budget breakdown for the use of levy funds requested from a developer. Indeed, it is hard to imagine how a required levy could be quantified in any other way. In the event that there is an underspend of the developer’s levy, then the amount not spent to meet the purpose of the levy should be promptly returned to the developer. It has always been my understanding that the specific purpose of the levy is to enable the offsetting of environmental degradation caused by specific developments. Such environmental degradation is to be defined, calculated and quantified by Natural England or its appointees to arrive at a numerical amount of the levy sum payable by the developer. Natural England has confirmed to me that that sum will in each case include an amount for contingency. That is a normal part of any budgeting process for what could be a complex project.

Where the system departs from normal practice is: what happens to any unspent funds once the quantum of environmental benefit that the developer has paid for is achieved? When I asked Natural England executives about this, they told me to my great surprise that any unused funds would simply be kept by Natural England and spent on unspecified further work. The levy amounts are likely to be substantial. It is not unreasonable to anticipate millions of pounds in some cases. To allow Natural England to retain any unspent funds for its own purposes flies in the face of standard contractual practice. It is also an open invitation to overprice the levy for any project as a means of generating revenue for Natural England above and beyond what is reasonably required for the agreed environmental benefits.

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[Lord Fuller (Con)]

My Lords, we are really getting under the bonnet here, looking at the minutiae of the EDP, and we are missing the bigger picture.

I speak in support of the noble Lord, Lord Cromwell, on Amendment 307A, and Amendment 256, in the name of the noble Lord, Lord Roborough. We find ourselves in this situation because the organisations with the statutory duties, powers, staff, income and systems to clean up our rivers, in so far as nutrient neutrality is concerned, have not been doing so. Defra, the Environment Agency, Natural England, the water companies in particular and the drainage boards are all in scope. They have got their job, but they have not been doing it.

I am concerned about the levy. We are talking about how we are going to charge this levy, but we are not really talking about where the money is coming from to deliver the EDPs. In effect, Part 3 lets these statutory undertakings off the hook. Instead, it falls to those people who do not have the powers or responsibilities, such as councils and local developers. If my noble friend Lady Neville-Rolfe was in her place, I am sure she would intervene and tell us that it will also fall to the small builders and small companies that spend money in local supply chains and so on. Here, we have the ultimate moral hazard; it is the reward for failure.

I do not deny that the costs of these EDPs could be apportioned appropriately across the canvas that is required for the purposes of the EDP and in proportion to the number of units it is going to sell. However, I am disappointed that the Bill does not require those with the responsibilities—Defra, the Environment Agency and so forth—to have the first pull. It is an omission, and one we should place on the record and return to later on Report.

I want to question the noble Lord, Lord Cromwell. He talks about the surplus. In a previous group, I explained how I have been involved in this for some time. There will be no surplus, because we are talking about 80-year tail liabilities. The money that is ponied up front to deliver an environmental improvement is going to have to be jam-spread over 80 years, in the case of nutrient neutrality, or 30 years, in the case of biodiversity net gain, and whatever other regulations come along. We are not going to know whether there is enough money in the kitty until year 79. I do not think this is fully understood.

Other noble Lords in previous groups have given numbers. Earlier, the noble Earl, Lord Caithness, spoke about £1,900 versus £2,300, and he was concerned—on the current account, if you like, or this year’s P&L—what the extra margin might be. But there has been a fundamental misunderstanding of how the accountancy works. That is why I wanted to explain it in an earlier group, and why I will talk about it in a later group when we get to private involvement. We need to have proper accounting standards for how we will approach accounting for these 80-year tail liabilities.

Nevertheless, until we do, when we are setting this levy it should be on the basis that those who are required to and paid to do this work should carry the first burden. Otherwise, small family building businesses will be cross-subsidising the large water companies which raise business water rates and should be upgrading their own sewage plants. Instead, the owners and purchasers of new homes—young families trying to get their foot on the ladder—are, in effect, going to be cross-subsidising. EDPs should be explicit in asking those who are paid and have the duty to do this work to do it first, and then, if there is any requirement left over thereafter, that has to be apportioned to the developers and, in due course, passed on to the purchasers of new homes.

In this group we have really only scratched the surface as regards the costs, accountancies and financial models. We need to do a lot more work on this, otherwise the money will run out in year 42 or 52. It does not really matter when, because we are not going to get to year 80, and, in the meantime, the costs of EDP and annual inspections, renewals and accountancy and everything else have not been factored in at all. This is not at all straightforward. As we get to Report, we will have to dig much more deeply into who pays, who should pay, and how we are going to value these tail liabilities. It is almost an actuarial problem. Until we do that, there will be no money to go back to anybody.

[Lord Cromwell (CB)]

Very briefly, I found that a fascinating exposition and would happily discuss it further outside the Chamber with the noble Lord. The logical corollary of it is that it is therefore almost impossible to calculate what the levy should be, because you are dealing with unknowns into an 80-year period. But let us not discuss it now—let us move on.

[Baroness Young of Old Scone (Lab)]

My Lords, I agree—let us not discuss it now.

Amendment 309A in my name may not be required, but I would like some reassurance from the Minister. As currently drafted, the Bill outlines Natural England’s role under the nature restoration levy in spending funds and in monitoring the implementation of the EDPs—monitoring, as it were, the inputs and actions that are needed under the EDPs. There is no explicit duty as far as I understand—but I would like clarification —to ensure that the plans result in real ecological improvements and outcomes on the ground. By that I mean not just whether the EDP has done was it said it would but whether it has delivered the goods as a result of those actions. My amendment would make sure that Natural England had to demonstrate that the outcomes planned were being delivered and the plan was working.

The only requirement I can find—I am sure the Minister will say that this is sufficient—is that the EDP reporting requirements that are laid on Natural England in Clause 62 already ensure that it will report on whether the conservation measures are having or have had their intended effect. It would be good to have confirmation that she believes this means that it has to report on outcomes.

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[Baroness Taylor of Stevenage (Lab)]

The noble Lord is correct, and there are provisions for that in the process.

Turning to Amendment 307, tabled by the noble Lord, Lord Gascoigne, I note that he is a non-native species of Surrey; I hope he is not an invasive species of Surrey. His amendment would limit what administrative expenses could be included within a charging schedule to those included in Section 11 of the Natural Environment and Rural Communities Act 2006. These powers were drafted long before the NRF and extend solely to charging for providing a service and for licences. Natural England’s role in the NRF is wider than simply providing a service. It will be drafting EDPs, conducting surveys and analysis to work out the most appropriate conservation measures, and consulting on them and presenting them to the Secretary of State. It will subsequently have administration costs as part of implementation, such as contracts with service providers and administration of levy collection. Many noble Lords have also referred to the need for a proper scientific basis, and it will be important that it be able to deliver that scientific evidence.

As mentioned previously the Government’s objective is for the NRF and Natural England’s role in delivering it to operate on a cost-recovery basis, which would not be possible if we were to accept this amendment. To ensure value for money for the taxpayer, it is important that Natural England can recover all appropriate costs as part of the levy.

I turn to Amendment 308A from the noble Lord, Lord Gascoigne. We agree with the noble Lord. The Government are clear that money from nature restoration levies will be used to deliver the EDP and secure the necessary conservation measures. While Natural England will be the organisation drafting EDPs on behalf of the Secretary of State, it will not always be best placed to deliver the conservation measures, so we will work with other bodies when securing those measures. We will set out a procurement strategy in due course that will speak to the issues the noble Lord is driving at through his amendment.

When Natural England works with or through partners it will remain bound by the provision in Clause 71 to

“spend money received by virtue of the nature restoration levy on conservation measures that relate to the environmental feature in relation to which the levy is charged”.

Money used in this way cannot simply be used for other purposes. For that reason, Clause 71 still requires that this money be monitored and accounted for. On the basis that there is always a link between the levy and the delivery of conservation measures, regardless of whether Natural England is the body delivering them, I hope that the noble Lord will not press his amendment.

I turn to Amendment 309, again tabled by the noble Lord, Lord Gascoigne. As the noble Lord will be aware, the Government have tabled an amendment making it explicit that Natural England can only deliver network measures—measures that do not directly address the impact on a protected site but improve the same feature elsewhere—where it considers that they will make a greater contribution to the improvement of the environmental feature in question than measures that address the impact of development locally.

Under these proposals, Natural England will be required to state how it reached this conclusion with reference to the best available scientific evidence. Crucially, network measures could never be used where to do so would result in the loss of an irreplaceable habitat, as this would inherently not pass the overall improvement test. More generally, the amendment would limit actions within the boundary of a local planning authority that may not align with the ecological boundary of, or environmental impact on, a protected site. I trust that this speaks to the substance of Amendment 309, given that the Government’s amendment provides an ecological lock on the use of these measures by requiring Natural England to pay regard to the need to protect the overall coherence of the relevant site network.

Amendment 310, also from the noble Lord, Lord Gascoigne, would require the Secretary of State to bring forward regulations covering all the matters listed within Clause 71(3). There are many indispensable elements to the levy regulations that will be brought forward to ensure that this legislation can operate effectively. However, framing the power as a “may” rather than a “must” provides the Secretary of State with discretion when deciding whether it is necessary to bring forward specific requirements in regulations.

I turn to Amendment 312 from the noble Lord, Lord Gascoigne. The Government agree that transparency is vital throughout the EDP process. That is why the Bill already includes reporting requirements at the midpoint and endpoint of an EDP that will include information about the cost of conservation measures. In addition, Natural England will be required to publish annual reports across the NRF that will include a summary of Natural England’s accounts, with information about the total amount of levy received and the amount spent on conservation measures each year. Through this process, we are confident that there will be an adequate level of transparency in respect of both costings and expenditure.

I turn to Amendments 314 and 315, tabled by the noble Lords, Lord Gascoigne and Lord Blencathra. As I set out previously, removing Natural England’s ability to recover administrative expenses would require the Government or Natural England—and as a result, the taxpayer—to shoulder the cost of creating EDPs and any administrative costs of implementing them. Similarly, removing Natural England’s ability to include previous expenses would directly impact this and remove the Government’s ability to forward conservation fund measures to Natural England, which would then recover the money through the levy when development proposals come forward before repaying the Government. Furthermore, limiting the ability of Natural England to reserve money for future expenditure would restrict its flexibility to secure the most appropriate conservation measures and plan for unforeseen circumstances. Allowing these costs to be included within a charging schedule will ensure the long-term viability of the nature restoration fund and provide greater certainty that environmental outcomes will be achieved.

In a similar vein to previous amendments, Amendment 301A, tabled by the noble Lord, Lord Teverson, and spoken to by the noble Baroness, Lady Parminter, would require that money accepted through the nature restoration levy be classified as additional to the core funding of Defra or Natural England. I can assure the noble Lord that the legislation is clear that the nature restoration levy is provided to Natural England to deliver on the EDP and cannot be used for purposes outside the EDP. As part of this, and to ensure transparency, regulations may require Natural England to account separately for any money received through the nature restoration levy that would prevent this from being merged with central budgets.

Although the levy can be used by Natural England for administrative expenses in connection with an EDP, this must, as the drafting suggests, be in connection with an EDP. This might cover the costs of drafting and implementing a specific EDP, or a proportion of the cost of setting up a digital platform for the NRF generally, but the nature restoration levy would not affect the core budget of either Natural England or Defra, which remains a matter for the Government. With this explanation, I hope that the noble Lord will feel comfortable to withdraw his amendment.

On Amendment 307A, the nature restoration fund is being established to support development, so it is vital that the nature restoration levy does not undermine the economic viability of development while still being able to secure sufficient funding to deliver the necessary conservation measures to meet the overall improvement test. There is no legislative requirement to include contingency in the levy, as framed by this amendment. However, it is important that the regulations allow for circumstances where it may be necessary or prudent to include a precautionary buffer to support the delivery of conservation measures, whether through back-up conservation measures or simply because the primary conservation measures may cost more than originally anticipated.

Crucially, a draft charging schedule will include details of how the levy has been calculated. If a contingency were included in the charging schedule, this would form part of the draft EDP, which will be subject to consultation before being considered by the Secretary of State. While I am confident that the nature restoration levy will be set at a fair price that supports development, the use of EDPs will remain voluntary in all but the most exceptional circumstances. A developer is therefore free to use the existing system if they do not think the EDP or the levy is appropriate. Developers will have full clarity on what they are paying—

[Lord Cromwell (CB)]

I thank the Minister for explaining those points, but I just want to clarify something. I think that we were both at the same meeting where I challenged Natural England on this, and it assured me that there would be a contingency. For a large project, I think it is perfectly sensible to have a contingency, but when I questioned what would happen to the contingency, or indeed any unspent funds, after of meeting the required level of environmental reparation, I was assured, to my astonishment, that it would not be handed back as excess but would spend it on some more good environmental stuff, above and beyond what was anticipated for the levy. That is a sleight of hand, if I can put it in those terms, to use money that was not needed for the purpose for which it was provided for another purpose. Perhaps, at best, there is a difference in understanding between the department and Natural England, which it would be helpful to clarify.

[Baroness Taylor of Stevenage (Lab)]

I thank the noble Lord for that point; I will attempt to clarify that for him. There are potentially significant complexities and legal and financial liabilities introduced by requiring the return of the money with interest to developers. Given that developers will have already received the benefit they paid for, it would be more proportionate, and better for nature, for Natural England to use any excess funds to the benefit of the environmental feature. With this explanation, I hope that the noble Lord will consider withdrawing his amendment.

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[Lord Cromwell (CB)]

I think that the Minister has just confirmed exactly what I said, which is that if there is any money left over, it will be spent on some other good stuff. That is rather unfair on the developer who has paid for something, and now the excess that was not spent is being used on something else.

[Lord Fuller (Con)]

I have listened very carefully. The developer knows what he has paid for. The developer has bought something. The developer has purchased an 80-year project, but he has not bought anything until year 79. I We have to get our heads around the money side and the financials—we are not going to know. I will dwell on this a bit more on a later group. The suggestion that someone has bought something and it is done and dusted on day one is a false premise; we have to understand that.

[Lord Cromwell (CB)]

The noble Lord and I are starting to repeat ourselves, so perhaps we can talk about it outside. However, that is not the reply that the Minister has given me.

[Baroness Taylor of Stevenage (Lab)]

I am happy to continue the conversation on this, but I would reiterate that it is up to the developer whether they enter into an EDP. They will have a charging schedule set out before them and, if they feel the contingency is too great, they can argue it or not take part in the EDP.

On Amendment 309A, tabled by my noble friend Baroness Young, I reassure my noble friend that the intention of her amendment is already captured. I agree that it is crucial that Natural England ensures the effective delivery of conservation measures, which is why Clause 55 sets out that the conservation measures in an EDP

“are to be taken by, or on behalf of, Natural England … to … address the environmental impact of development”,

as well as

“contribute to an overall improvement in the conservation status of the identified environmental feature”.

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[Baroness Young of Old Scone (Lab)]

My Lords, I very rarely disagree with the noble Lord, Lord Curry, because he knows a lot, and I very rarely disagree with the noble Lord, Lord Cromwell, because otherwise, he might poison my breakfast—but on this occasion, I feel I have to comment.

I understand entirely that the noble Lord, Lord Curry, is worried that the emerging, very valuable nature markets should not be eclipsed totally by the levy and Natural England’s role. However, some of the amendments in this group tip the balance too far the other way and say that nature markets must be the first port of call and not considered alongside all other potential organisations that can deliver the right solution for the right site for a particular EDP.

The existing nature market products are very valuable; some of them are less so. However, there are a shedload of organisations and groups that could deliver the requirements of an EDP for Natural England, such as some of the large charities, the ENGOs, farmers, groups of farmers, other landowners and the Forestry Commission. The role of Natural England must be to consider which of those organisations, or groups of them, should be the best way forward, including private nature markets but not giving a pre-eminent place to them and them preventing Natural England choosing perhaps the most effective partner, who would be someone who is local, onsite, available, already working in providing nature outcomes and could do more work to help with that EDP.

I would be particularly unkeen that we avoid Natural England being able to do it itself. On occasion, if there is work that can be delivered to take forward an EDP next to a national nature reserve that is already managed by Natural England, why should Natural England not simply do that by extension? It would be the most sensible proposition.

[Lord Cromwell (CB)]

I would like to assure the Committee that I am looking forward to many convivial and toxin-free breakfasts with the noble Baroness, Lady Young, in the future—in case anybody was worried that I had, in some way, threatened her with anything else. That was far away from anything I would wish to do.

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[Lord Jamieson (Con)]

Hear, hear!

[Lord Cromwell (CB)]

Thank you. See you for breakfast!

On a more serious note, I ask the Minister perhaps to write to me to set out what these opportunities are, how they will be made available, and how the appropriate payment rates will be determined. I am not suggesting that she can quantify them now, but what is the process? I do not think the Bill makes that clear, unless I have missed it.

I will take the three amendments in my name as a group, as they are linked. They address the actual delivery of the conservation measures set out in environmental delivery plans, once those have been established. Clause 76(3) recognises that and says:

“Natural England may pay another person to take conservation measures”.


But the Bill lacks a clear, simple and manageable series of steps for Natural England to follow to achieve that. My Amendment 318B would turn the “may” into a “must”, meaning that third parties should be engaged. Incidentally, I do not think that those would be entirely commercial; they could be non-governmental organisations that are able to deliver.

My Amendments 320B and 325ZA set out a series of rational steps for delivering conservation works, which are: first, hold a competitive tender process; secondly, if there are no willing bidders, seek to buy the land at market value; thirdly, if that really proves impossible, proceed to compulsory purchase as a last resort. These amendments would strengthen the Bill by setting out a clear set of sequential and proportionate process stages for the all-important implementation of conservation works. This would be helpful both to Natural England and to those wishing to engage with delivering the EDP process. I hope the Government will recognise this as a helpful clarification that will support the effective implementation of the plans under Natural England supervision.

--- Later in debate ---

[Baroness Coffey (Con)]

My Lords, I will speak to the amendment I have tabled. I removed a group from the debate, noble Lords will be pleased to know, and thought this was the appropriate place to put it. I start by supporting the amendment of my noble friend Lord Roborough. The human rights memorandum accompanying the Bill is frankly on the edge of trying to suggest that this could well be allowable on the basis of it being for the public benefit. Clearly, if the land is no longer needed and has not been approved for use by the Secretary of State, it must go back to the original owner without question. If not, it would be a further infraction of land removed. I appreciate that there may have been some compensation in the interim; perhaps the details of that need to be sorted out.

My amendment goes all the way to page 119 in this Bill and then back to Clauses 83 and 84. It suggests that powers to acquire land compulsorily do not apply in relation to Crown land, and then subsection (10) defines Crown land in that regard. Subsection (10) says that Crown land means land in which there is a Crown interest or a Duchy interest, but Crown land, as I may have explained to the Committee, is also land belonging to any government department. I appreciate that I do not know the full conventions for discussing matters regarding the royal family, but I give the example of Dartmoor, which has been a combination of Duchy of Cornwall land, part of Dartmoor National Park and privately held. It is also a significant landscape, probably of the type that could well have EDP proposals put there, ideally fixing the SSSIs that are not quite so good at the moment.

My main focus is government land. Perhaps I am being too strong, but it seems somewhat heinous that the Government can start going after all other private land. Bearing in mind how much land this Government own—I think the MoD is the fourth-largest landowner in the country—why does this not apply? Quite often, with bits of government land around the country, Homes England try to get some of it for housing, and so on. But it is an exceptionally laborious process while trying to achieve a government outcome. Departments such as the MoD often want the full market value, as if it were a commercial enterprise when selling to Homes England.

So, I am concerned. I would not mind if we excluded the bit that was the Duchy of Cornwall or the Duchy of Lancaster, but we should not be excluding government land from being potentially available to undertake the exercise that we want it to as a Government and Parliament intend. I therefore encourage the Government to think again and perhaps to rescope Clause 91(10) to have only the very specific narrow elements of that definition, as set out in Part 13, Section 293 of the Town and Country Planning Act 1990, and to exclude only those held by the relevant Crown and Duchy interests that are not government land.

[Lord Cromwell (CB)]

My Lords, I support Amendment 292, which requires that, where land has been acquired under compulsory purchase but is not then used for the purpose for which it was acquired, the Secretary of State should seek to return it to the landowner. Surely that is natural justice. However, it leaves open what happens to any compulsory purchase funds that have been paid to the landowner. To my mind, the funds should be returned if they wish to take back the land.

I draw the Committee’s attention to evidence from HS2, including coverage on the BBC—is there a debate we can have without reference to HS2? Land was compulsorily purchased, but when it was decided that the land was not needed, it was offered back to the farmer in question to buy at a far higher price, or the so-called market value, which is a fine example of profiteering on the back of compulsory purchase. I also remind the Committee of the concerns I evidenced on Monday about the bullying behaviour of agents acting for authorities with compulsory purchase powers. Despite what it says about it being a last resort in theory, when the agents are motivated to acquire the land as quickly and cheaply as possible, different tactics often apply.

[Baroness Taylor of Stevenage (Lab)]

My Lords, this group relates to the powers in Part 3 for Natural England to make a compulsory purchase for purposes connected with the taking of conservation measures. The Government have taken a cautious approach in respect of compulsory purchase powers, but it is clear that this needs to be available to ensure that there is sufficient certainty that, where necessary and appropriate, compulsory purchase can be used to ensure that conservation measures are delivered. However, the Government recognise the need for such powers to be tightly constrained, and I am confident that, when considered alongside existing safeguards, the proposed amendments are not necessary.

I turn first to the amendments tabled by the noble Lords, Lord Roborough and Lord Blencathra, which seek to require Natural England to return any land obtained under a compulsory purchase order in two different scenarios. The first is when Natural England uses these powers to purchase a piece of land and the Secretary of State later decides not to make the EDP in question. I can assure the noble Lords that this will never happen, as Natural England cannot make a compulsory purchase before the EDP has been made.

The second scenario is when an EDP is revoked. Where an EDP is revoked, any land secured through compulsory purchase may still be required to address the impact of development covered by the EDP, or to support the delivery of any remedial measures being taken forward following revocation. Requiring land to be returned automatically would risk removing a crucial way of delivering remedial measures and potentially damaging the relevant environmental feature.

Where land has been compulsorily purchased and is not needed, and it would genuinely be surplus, the Crichel Down rules would apply. The land would be offered back to the former owner, their successor or sitting tenants at market value, provided that the land has not materially changed and none of the exceptions under the rules applied. These rules are well-established, as we discussed in a debate the other day, so I hope the noble Lord is content to withdraw his amendment.

Moving to Amendment 323, tabled by the noble Lord, Lord Cameron, and the noble Earl, Lord Caithness, I assure the noble Lords that the subject of their amendment is already addressed in the Bill. CPO powers may be used only in connection with the taking of conservation measures, as defined in the legislation. Amendment 324 would restrict Natural England’s ability to use CPO powers to purchase land that is part of a private dwelling. I would first like to assure noble Lords that this type of land is incredibly unlikely to meet the high bar for compulsory purchase or to be approved by the Secretary of State. The use, or future use, of land will be taken into account by the Secretary of State when approving the CPO. This important safeguard ensures that the use of these powers comes with appropriate oversight, and noble Lords will be aware of existing protections around private dwellings granted by the Human Rights Act 1998. I think the noble Lord, Lord Roborough, mentioned that himself.

Finally, Amendment 352 would extend the compulsory purchase powers to Crown land. The CPO powers in the Bill are there to provide assurance that land can be acquired where necessary to ensure that an EDP can deliver the necessary conservation measures. Extending these powers to cover Crown land is unnecessary. To put it simply, if Natural England were to require Crown land for a conservation measure, that would be resolved between Natural England and the relevant authority. I hope that, with those explanations, the noble Lord will be content to withdraw his amendment.

--- Later in debate ---

[The Earl of Caithness (Con)]

My Lords, I beg to move Amendment 319 and will speak to Amendment 320. I would like a little bit of clarification on Clause 76(3), which reads:

“Natural England may pay another person to take conservation measures”.


Surely that ought to be “an appropriate person, with the right qualifications, to take conservation measures”? I would be grateful if the Minister could expand a little on what the Government’s intention is on this. Could she also confirm that subsection (3) refers entirely to EDPs, not to wider powers? It just says:

“Natural England may pay another person to take conservation measures.”


If the noble Baroness can help with that, I would be grateful. I beg to move.

[Lord Cromwell (CB)]

My Lords, I have every sympathy with these amendments, which reflect wider concerns expressed about the capabilities of Natural England and those whom they will deploy, but I do wonder how they will work in practice. In that regard, I have three quick questions for the Minister.

First, will Natural England reveal to levy payers which organisations—and, equally importantly, which qualified individuals—will be given responsibility for using that levy payers’ money to deliver relevant EDPs, so that levy payers can, as stakeholders, have confidence in delivery? Secondly, will such levy payers be able to communicate with these individuals or organisations to learn of and discuss progress? Thirdly, how, and by whom, will these individuals or organisations be held to account for the work that they do?

[Lord Blencathra (Con)]

My Lords, I rise to address Amendments 319 and 320, as introduced by my noble friend Lord Caithness—I thank him for that. These important amendments seek to ensure that future environmental delivery plans are delivered by people or bodies that have the appropriate capabilities necessary for conservation projects.

Environmental delivery plans are centralised schemes that will thus pull together more resources than have previously been designated to environmental initiatives. That means an increase in both scale and responsibility. Delivering plans at an increased scale necessitates that those responsible have the required expertise—not only industry knowledge, but larger-scale management capabilities. Amendment 320 particularly speaks to that, as it expands the potential providers to include bodies, allowing delivery to be overseen by a wider and more diversified group of people.

Responsibility is higher with EDPs, as the use of pooled resources—necessarily greater than case-by-case funds—increases the risk of wasteful externalities. This means that providers must be prudent and resourceful. It is therefore important that those entrusted with delivering EDPs have the relevant experience and qualifications to mitigate waste and mismanagement and maximise the effectiveness of those schemes. These amendments seek to ensure that those paid by Natural England have the requisite skills. I look forward to the Minister’s answer to that and to the questions raised by the noble Lord, Lord Cromwell.