Contribution
My Lords, I am delighted to kick-start this group, not least after the great discussion we just had on the previous group. Equally, I am delighted and honoured to have the support of the noble Baronesses, Lady Young of Old Scone and Lady Parminter, for my amendment.
Amendment 245, which is in my name, seeks to specifically set out the importance of the mitigation hierarchy, which has reared its head on various occasions throughout the entire passage of the Bill. Most should already know what that means but, in short, it is the well-established common principle in development that there are a series of steps to go through on a site when it comes to the environment. These are: first, to avoid, then to minimise, then to restore, and then to offset.
As we just touched on, the problem with EDPs in this Bill is that we simply fast-track to compensation. In effect, developers can ignore the first three stages and pay into some pot to offset whatever it is they are doing. Here, the only obligation is the payment; your role is then done. I am not normally like this, but that is a pretty dystopian view. I know that, with many, that will not happen, and some will seek to follow those steps when working on development, even if the law does not stipulate it, but that would not be enforced and would be down to good will.
Amendment 245 would fix that and insert the mitigation hierarchy as part of the EDP’s conservation measures. Indeed, my amendment would be inserted into the subsection that explicitly states:
“An EDP must set out the measures (‘conservation measures’) that are to be taken by, or on behalf of, Natural England, under the EDP”.
It may be argued that it is not needed because of the mitigation hierarchy. The Minister is not in her place, but she was just saying at the Dispatch Box that the mitigation hierarchy is already implicit and that it is common practice. I have the highest regard for the Minister, who I assume will be responding, and I am sure she will say at the end of this debate that, while the Government support the principle and the arguments behind what I am seeking to do, it is not needed because it is in the NPPF. However, if it is not explicit in the Bill, it leaves the door open to regression legally.
I know that some see the NPPF more as planning guidance than law, and that the NPPF is general rather than specific. An EDP is entirely novel, hence why we are rightly having this huge debate; it creates a new regime and, as a result, it is not in the NPPF yet. Despite what the Minister just said, as it is new, it is right that it should feature in the Bill because it is creating a whole new aspect of planning law. It would ensure that the Bill and the NPPF align coherently. That should be explicit in the Bill.
It is not just me who thinks that the mitigation hierarchy should feature; in the previous group, the Government set out some amendments themselves. If you look at the guidance when these amendments were set out, the Government said:
“These changes underline the continued role for the mitigation hierarchy in the design of EDPs, ensuring that local conservation measures are preferred unless there is a clearly articulated environmental basis to look further afield”.
I think that is pretty much what the Minister said in concluding the previous group so, when those amendments came down, I was relieved. As I said on the previous group, I am grateful that the Government have put some amendments down. When I kept hearing that the mitigation hierarchy is going to be maintained, I thought that that was great; it is a good step. However, when I look at the list of amendments that we are debating in this group, I am afraid that I cannot find exactly where the Government say that the mitigation hierarchy will take place. This amendment seeks to fix that and to put in what the Government say they support.
It feels like we were debating this only yesterday. It was literally yesterday, at 1 am, when we were talking specifically about species. It may well be that, even if there are no species to be protected on a site, we can all agree that it is right that any development seeks to minimise and avoid as much damage as possible. That in itself is conservation.
There are a number of similar amendments in this group from other noble Lords, all of which seek to address the same issue of putting specific references in, and I support them, especially Amendment 301 in the name of the noble Baroness, Lady Willis of Summertown, to which I have added my name. It seeks to ensure that the mitigation hierarchy applies, while allowing flexibility for Natural England. If we take the group as a whole, these amendments do not stop the EDP process and they are not political games, certainly not from me. It does what the Government say they support. I hope that it will feature at some stage as the result of these conversations, because it is not in the Bill at the minute. I hope that the Minister recognises that this improves what the Government seek and makes the EDP a win-win for nature and development. I beg to move.