I am thankful to the noble Baroness, Lady Jones of Whitchurch, first for her amendments but also for her support for biodiversity net gain generally. I shall begin with her Amendments 196 and 201AZB as they pertain to agreements in perpetuity. This issue has been raised by a number of noble Lords, and I understand and hear her concern for the longevity of habitats delivered in pursuit of biodiversity net gains.
I shall make a few points about this if I may. First, it is not true to say that the biodiversity net gain that is generated could be simply torn up after 30 years, or that those rich habitats would be lost. Do not forget that there is already a wide range of protections and management incentives for habitats, which would apply to biodiversity net gain sites after the 30-year requirement. Those protections are being enhanced as we speak. It is also important to note that 30 years is a minimum. The Government have always been clear that we want to encourage longer agreements where the landowner is happy to do so, but I am acutely aware that we need to deliver habitats in the right places to help wildlife recovery.
That takes me to a third point, which is a legitimate concern that immediately demanding the commitment of land in perpetuity, as the amendment would, would without doubt deter at least some landowners from offering their land for conservation in key strategic areas in the first place. That would make it much harder to secure the buy-in that we will need if we are to have any chance of reversing the biodiversity loss that we are seeing in this country.
I feel that in the ideal world you would have land improved and then protected for ever in law. However, I worry that there is a danger in letting the perfect being the enemy of the good in this case. There is a rationale behind what we are proposing and I think, on balance, that it is right. However, I have heard the arguments that have been put forward and will continue to have those discussions.
The Government have listened to both sides in this debate and recognise that the right answer to this question might be different for major infrastructure. I am pleased to inform the noble Baroness that we have left the issue of agreement duration as it pertains to major infrastructure open to further consultation. In simple terms, we have not prescribed in the Bill that net-gain agreements for major infrastructure must be 30 years. I can confirm that, subject to consultation, it is not the Government’s intention to require a shorter duration for major infrastructure development than would be asked for development permitted under the Town and Country Planning Act.
I move on to Amendments 197 and 201 in the name of my noble friend Lord Blencathra and Amendment 194C in the name of the noble Baroness,
Lady Jones of Whitchurch. I thank my noble friend Lord Blencathra for his comments. We have a happy customer and, to quote Basil Fawlty,
“we should have him stuffed.”
I share the view of my noble friend and the noble Baroness that the biodiversity net gain requirement should be applied widely.
On Amendment 194C, the Government’s support for widely applied biodiversity net gain is shown through net gain provisions which include, by default, the types of major infrastructure projects to which the noble Baroness’s amendment relates. Following commencement of the measures included in the biodiversity net gain provisions, when a major infrastructure project is brought forward, for example, through a future hybrid Bill, and granted deemed planning permission under the Town and Country Planning Act 1990, it would be subject to the biodiversity net gain condition unless explicitly exempted.
In response to the noble Baroness, Lady Hayman, paragraph 10 in the new schedule inserted by Amendment 201A makes provision for the biodiversity objective to apply to development types that are not currently covered by a national policy statement. This would include any development brought into the scope of the regime at a future date, so major housing developments will be included. I hope she is reassured by that. In fact, the exemption clause is for potentially narrow, limited, individual, targeted examples if they arise. It is not about exempting classes of developments, such as large housing projects. I hope that also reassures her.
Moving on to Amendments 197 and 201, the Government have been clear that any exemptions will be narrow and practical in order to keep net-gain requirements proportionate, as I said earlier. The vast majority of permitted development rights are for small-scale development or changes of use, such as minor alterations to buildings where there is little or no impact on biodiversity, for example, conservatories or sheds. Applying the requirement to the delivery of urgent Crown development—applications for which are very rare as there has been only one such application in the past decade, for example—could risk causing unacceptable delays in addressing urgent national priorities due to the shorter development timescales typically involved.
I am pleased to confirm to my noble friend Lord Blencathra that the next phase of the HS2 scheme, Phase 2b from Crewe to Manchester, will deliver a net gain for biodiversity. However, applying the mandatory requirement as set out in the Bill to this phase of HS2 would result in legislative delays and further costs to the scheme for little or no gain in outcomes. The HS2 phases that are already under way are delivering no net loss of biodiversity, for example by rewilding 127 hectares of chalk grassland in the Colne valley. The noble Baroness, Lady Bennett, mentioned the saplings that were allowed to die off. She is right, and I understand that HS2 has committed to replanting all of them.
I want to address a broader point that a number of noble Lords have made, including the noble and learned Lord, Lord Hope of Craighead. We all acknowledge
that ancient woodland is irreplaceable so it cannot meaningfully or realistically be compensated for by net gain. You cannot replace ancient woodland for all the reasons that the noble and learned Lord pointed out. Therefore, ancient woodland simply needs protection. It is wrong to describe that recognition, that fact—I think it is a fact—as mendacious, as the noble Baroness, Lady Young of Old Scone, did. It is just a simple observation and one that holds true.
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Where there is unavoidable loss of ancient woodland due to, for example, HS2, it will have to be addressed through a range of other measures. For example, in phase 1 this has included creating new native broadleaved woodland, enhancing linkages between ancient woodlands, helping to restore ancient woodland sites and so on. However, there is no pretence that you can replace ancient woodland: once it has gone, it has gone. As a number of noble Lords said, it takes many thousands of years to reach the status that it does.
The noble and learned Lord, Lord Hope of Craighead, also raised quite a few technical questions, which I hope he will allow me to answer by letter as there are a lot of issues to cover in this response. The Government consider it appropriate that the mandatory biodiversity gain requirement should not apply to development included in permitted development rights, urgent Crown development or HS2 for the reasons I have described.
Addressing Amendment 201AZA, I again fully share the noble Baroness’s view that it is essential for biodiversity net gain to be calculated in the appropriate manner, and this is exactly why paragraph 8 makes it a requirement for the biodiversity net gain statement to set out the evidence requirements to be included within an application, which would include a completed metric. It is the Government’s intention to confirm the use of a suitable metric well in advance of the requirement coming into force. This will be essential in order to provide industry with the certainty needed to fulfil the requirement.
I will now speak to the amendments tabled by my noble friend Lord Lucas. Starting with Amendments 201AA and 201AD, again I share my noble friend’s view that the habitat data used to inform biodiversity net gain assessments must be of the highest possible standard. Guidance will clarify that the biodiversity metric and gain plan should be completed by a competent person and that habitat surveys should be completed in line with professional good practice guidance. It will be in the developer’s and habitat provider’s interest to take heed of the guidance provided, as any survey information that is incorrect or incomplete might be more likely to risk delay or even cost to their project. I can assure my noble friend Lord Lucas that should the upcoming biodiversity net gain consultation highlight a particular need for legislative provisions about the timing or standards of surveys, the Government will consider making regulations to that effect. In response to the other point about small business—I think it was raised by my noble friend Lord Lucas—we will implement this regime in a way that works for small sites and small businesses, and we are working out now exactly how best to do that.
Turning to Amendment 201AZC, I welcome the noble Baroness’s intention that the biodiversity gain objective should be broadly applied. Compelling the Secretary of State to publish a statement for projects where no national policy statement already exists would give little or no additional certainty that statements would be produced unless it also specified a timeframe in which the statement must be published. Providing a timeframe in which the statement must be produced, consulted on and laid before Parliament would be challenging without knowing when and what class of project will arise that falls outside the scope of existing national policy statements. I can, however, reassure the noble Baroness that it is the Government’s intention that the biodiversity gain objective will be applied broadly to national infrastructure projects, most of which we expect to be covered by an existing national policy statement.
I turn briefly to the comments of the noble Earl, Lord Devon, who asked how much land will be required to fulfil our biodiversity net gain ambitions. The answer, I am afraid, is that it is impossible to know, but it is worth pointing out that the UK is one of the most nature-denuded countries on earth and that there is a lot of marginal land which is nature-denuded but could be restored without posing a choice between food production and nature. It is also worth pointing out that nature and food production are not mutually exclusive; it is possible, as he knows, to farm in a way that is nature friendly. We are committed to the 30 by 30 goal: protecting 30% of the country’s land and oceans by 2030. It is an ambitious target but, let us not forget, it still leaves 70% of the land not fully protected. I think this is something we simply have to do and which meets generally with the approval of most people.
My last point in relation to the noble Earl, Lord Devon, is that the November deadline is not arbitrary. We do not absolutely have to get the Bill done by COP, but it would be good for all of us if we did. It is important and clearly in the national—and international —interest that we do so because so much of our authority when it comes to cajoling the rest of the world into raising its ambition comes from what we are doing in this country, so it matters. It is not an absolute red line, but it should matter to all of us that we get this job done.
I turn to Amendment 201AZD. Setting out the evidence requirements for net gain will be essential to provide certainty for developers and enable the Secretary of State to make a clear decision on whether the gain objective has been met. That is why paragraph 8 of new Schedule 2A to the Planning Act 2008 already states that a biodiversity gain statement “must specify the evidence” that must be produced as part of an application
“to demonstrate how the biodiversity gain objective is met.”
However, requiring the Secretary of State to prescribe such documents in secondary legislation may lead to unnecessary duplication with the biodiversity gain statement or lead to confusion about how the requirement is to be met, for little or no additional benefit.
I turn to Amendment 200, also in the name of my noble friend Lord Blencathra. As he knows, we have introduced an amendment that provides powers to
extend biodiversity net gain to major projects in the marine environment in future. This will be implemented once a suitable approach has been developed, so that developments at sea will be required to increase marine biodiversity. The Government are exploring how net gain for the marine environment could best be delivered and will consult on the principles for a marine approach later this year. He also asked a number of technical questions, and I was unable to keep up with all of them. If I have missed any, I will follow up in writing—I hope that that is okay.
Moving on to Amendments 198 and 199, I share the view of the noble Baroness, Lady Bennett of Manor Castle, that funding and resources must be made available to successfully implement biodiversity net gain plans. However, proving that money has been set aside for delivery would present a complex administrative burden for local authorities to mitigate a risk that the legislation already makes provision to address. Where biodiversity net gain is to be achieved off-site, habitat enhancements will be registered. This registration cannot occur unless a planning obligation or conservation covenant is arranged to secure the habitat enhancements.
I turn to Amendment 198A. The noble Baroness, Lady Young, is right to seek assurance that the mitigation hierarchy will be respected in the practice of biodiversity net gain. The mitigation hierarchy is already supported by national planning policy; however, applying it requires subjective judgment. Planning practice guidance on the mitigation hierarchy is already available, and we will provide more tailored guidance for biodiversity net gain that reflects this. Planning authorities will therefore be more able to support the mitigation hierarchy when determining both the biodiversity gain plan and the planning application itself.
On Amendment 201AB, the monitoring of biodiversity gain sites will be important for enforcement and policy evaluation. Monitoring practice will likely evolve over time, as practitioners become more familiar with the requirements and the most efficient and effective ways of delivering net gain outcomes. While the Government agree that proportionate monitoring arrangements should be put in place for biodiversity gains, we are not certain that it will always be appropriate for a third party to undertake this monitoring or for separate fees to be reported. The Government wish to consult further on appropriate monitoring arrangements, but I assure noble Lords that we already have the necessary provisions to implement these through secondary legislation or guidance.
Regarding Amendment 201AC, it is vital that the biodiversity gains promised in biodiversity gain plans are delivered in practice. In developing the biodiversity net gain proposals, the Government have been paying attention to the academic literature on the subject of offsetting. In particular, we recognise the findings, in a range of international policy contexts, that off-site compensation often goes unrecorded or undelivered. That is why the biodiversity gain clauses in the Bill are clear that any gains delivered off-site must be recorded in a national register if they are to be counted towards a development’s net gain. To be included on this register, the biodiversity gains must be secured with a planning obligation or a conservation covenant. Both these
options for securing the gains will mean that obligations are attached to the land and that changes in ownership would not invalidate any biodiversity obligations.
Finally, I turn to Amendment 201D. Statutory credits are intended to be sold only as a last resort when developers are unable to achieve net gain within the development, off-site on their own land or by purchasing off-site biodiversity units. Credits will allow the private market for biodiversity units to thrive, while preventing delays to development from any market shortages. Local authorities wishing to undertake habitat enhancement will be able to fund such works by selling registered biodiversity gains on the market, but responses to the 2018 net gain consultation warned that not all local planning authorities would have the capacity to sell credits. It is therefore necessary for the Government to provide across England a consistent statutory credit scheme, which can act as a last resort wherever supplies of local authority or private biodiversity units are exhausted or absent.
It has been a huge pleasure to listen to and take part in the debate on such a vital part of the Bill. Biodiversity net gain will result in immediate and significant investment in nature from the first day that it is implemented. It is good news for our countryside and nature. I ask noble Lords not to press their amendments.