Part 3 of the Planning and Infrastructure Bill is possibly facing the most criticism. Do its provisions with regard to the preparation of environmental delivery plans, enabling a nature restoration levy to be set which is to be paid by developers in lieu of some of the site-specific assessment and mitigation measures they currently have to carry out, go too far and amount to a regression in environmental protection?
First, as a way into the issues, I do recommend my colleague Susannah Herbert’s summary and initial critique of the provisions published the week that the Bill was introduced into Parliament: PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions (13 March 2025)
The government has published a fact sheet. It summarises the five key phases of the nature recovery fund as follows:
- Framing the EDP – EDPs will define the environmental impacts they cover, such as nutrient pollution or the impact development might have on a protected species. EDPs will be spatially specific with clear maps setting out where development is covered by an EDP and what scale of development the EDP can support.
- Designing the measures – EDPs will set out the suite of conservation measures that will be deployed to more than address the impact of development across a given area. For example, an EDP covering nutrient pollution will set out how the combined effect of the conservation measures will go beyond the current expectations of nutrient neutrality and lead to an improvement in water quality.
- Setting the levy rate – A simple charging schedule, sufficient to cover the costs of the conservation measures, will be payable by developers to meet the relevant legal obligation associated with the impacts addressed by the EDP.
- Consultation and approval – in developing an EDP, Natural England will benefit from views captured through consultation before the EDP is submitted to the Secretary of State for approval. When considering the EDP, the Secretary of State will be bound by a new legal test to ensure that the conservation measures outweigh the negative effect of development.
- Delivering on the EDP – once the EDP is in place, Natural England will the necessary powers to use funds collected to implement the conservation measures. They will then monitor the impact of the measures to ensure they are working as expected and make any amendments to the EDP that may be necessary.
The Bill is currently at Committee stage. Marian Spain, chief executive of Natural England, gave evidence on 24 April 2025, supportive of the proposals in the Bill. However, there are many who are expressing concern.
Instructed by NatureSpace Partnership, which delivers strategic licensing in relation to great crested newts and other species, David Elvin KC has provided a masterly and detailed (45 page) opinion dated 23 April 2025. He concludes that the proposals as they currently stand would amount to a weakening or reduction in current levels of environmental protection: the proposed test of “overall improvement” in environmental protection is “lax” and “generalised”.
The Office for Environmental Protection’s advice to the government on the Bill (2 May 2025) echoes this concern: The OEP is “concerned by several aspects of the bill which undermine its potential to deliver intended win-win outcomes. We recognise that the EDP system is intended to be a different approach, not a direct comparator to existing environmental law. There are, though, fewer protections for nature written into the bill than there are under that existing law. Creating new flexibility without sufficient legal safeguards could see environmental outcomes lessened over time. And aiming to improve environmental outcomes overall, whilst laudable, is not the same as maintaining in law high levels of protection for specific habitats and species.
In our considered view, the bill would have the effect of reducing the level of environmental protection provided for by existing environmental law. As drafted, the provisions are a regression. This is particularly so for England’s most important wildlife – those habitats and species protected under the Habitats Regulations.
We summarise two particular concerns below, and provide further detail on these matters and other aspects of the bill in the annex to this letter.
A principal area of concern lies with the framing of the bill’s ‘overall improvement test’ for adopting EDPs. This test rests on a balancing exercise to decide whether negative environmental effects of development are likely to be outweighed by conservation measures taken under an EDP. As drafted at the moment, that exercise would allow considerably more subjectivity and uncertainty in decision-making than under existing environmental law. We advise that the overall improvement test should be strengthened to address this.
The bill as drafted also allows for conservation measures to be located away from the protected sites affected by development. Currently, this is only permissible in limited circumstances and where the overall coherence of the protected site network is maintained. Such safeguards are absent from the bill. Undermining the network of protected sites could affect the Government’s ability to meet its legally binding biodiversity targets and ‘30 by 30’ objectives. We advise that the lack of safeguards for the overall sites network is rectified, given the role they play in efforts to meet statutory nature targets.”
The OEP sets out, in an Annex to the letter, various detailed recommended changes to what is proposed.
More recently, the government has now published its impact assessment in relation to the Bill (6 May 2025). Section 7.2 is relevant for our purposes (NPSV = “Net Present Social Value (NPSV) in 2025 prices with 2026 base year across the 10-year appraisal period 2026-35”), EANDCB = “Equivalent Annual Net Direct Cost to Business” and EANDCH = “Equivalent Annual Net Direct Cost to Households”):
Incidentally, some groups and media pieces (eg UK government admits almost no evidence nature protections block development (The Guardian, 7 May 2025)) have misconstrued that reference to “limited data availability”. I agree that the statement is somewhat of a cop-out (and the range given absurdly wide) but the footnote makes it clear that the figure is expected to be a significant underestimate. For the real effects arising from nutrient neutrality alone see eg the work by the HBF and as for water neutrality see the recent failure at examination for instance of the Horsham local plan and many individual stalled schemes.
Is there a middle ground here? Should EDPs and the nature restoration funds, rather than ambitiously seeking to remove the need for developers to assess and address the specific effects likely to arise as a consequence of the species and habitats on their development sites themselves, in fact focus on those off-site issues which have indeed been causing so much delay and uncertainty: nutrient neutrality, water neutrality and issues relating to recreational pressure? After all it is these aspects which the impact assessment focuses on:
“The Nature Restoration Fund is expected to deliver benefits to areas where particular environmental obligations apply, for example, nutrient neutrality catchment areas. While some urban areas are in nutrient neutrality catchments (Southampton, Portsmouth, Norwich and Middlesborough), the majority of land area covered by nutrient neutrality catchments is rural. In some cases entire LPA areas are within nutrient neutrality catchments, where obligations limit ability to deliver those LPAs’ housing targets. The largest nutrient neutrality catchments (by hectare) are Solent, River Eden Special Area of Conservation (SAC), Somerset Levels & Moors Ramsar. The location of the interventions secured under the NRF will be determined by the scale of the delivery plan area.” (Paragraph 69)
I can see that in some circumstances nature recovery objectives can be secured more efficiently and effectively on a coordinated basis. The impact assessment says this:
“…the Nature Restoration Fund measures aim to improve environmental outcomes by requiring developers to contribute towards nature recovery. By shifting to a strategic approach to addressing environmental obligations, coordinated by a single delivery body, action will be more efficient and effective – achieving more with the same cost to developers. It is therefore expected that these measures will contribute to meeting the Government’s wider environmental targets and help secure the benefits derived from biodiversity and ecosystem services more effectively. For example: wetlands can effectively regulate flow of water which enhances resilience to flooding; forests, oceans and healthy soils sequester carbon, reducing greenhouse gases in the atmosphere; peatlands act as carbon stores; restored vegetation stabilises soils reducing erosion and improving water quality; and natural landscapes offer spaces for outdoor recreational activities like hiking and birdwatching. These activities promote physical and mental well-being and provide benefits through tourism-related revenue. This policy is also designed to speed up the delivery of net zero infrastructure (alongside other development), and in doing so support decarbonisation.” (paragraph 77)
But should any of this replace on-site assessment and on-site mitigation, save where it can be shown that off-site mitigation will in fact be as effective? And wouldn’t this also be fairer, rather than, presumably, some developers having to over-pay to compensate for others seeking to develop more ecologically sensitive sites?
Simon Ricketts, 11 May 2025
Personal views, et cetera
SIMONICITY 