What do the changes to the Planning and Infrastructure Bill's nature provisions mean for developers in England?

The development and nature recovery provisions in Part 3 of the Planning and Infrastructure Bill have been among the most contested. With those provisions now settled (unless something truly remarkable happens when the Commons debate an unrelated amendment), it is time to consider how they have changed and what those changes mean for developers.

A recap of the basic approach 

Currently, housing and infrastructure developers often have to carry out project-specific environmental assessments under The Conservation of Habitats and Species Regulations 2017 (Habitats Regulations) and then convince a decision-maker that they are able to provide sufficient project-specific environmental mitigation and/or compensation measures in order to receive the planning authorisations they need to build (including planning permissions or development consent orders). Where their proposals affect protected species, they also need to secure the necessary licences. 

In spite of the numerous amendments made to Part 3 by both Houses of Parliament, the core of the new approach remains unchanged (as covered in our previous Insights). Natural England (NE) is granted powers to draw up and deliver environmental delivery plans (EDPs) each of which will set out measures it will take to:

• address the environmental impact of development on one or more protected features of a protected site and/or a protected species; and
• secure an environmental uplift over and above what would be required under current legislation. 

Each EDP applies to development in a specified geographical area, of a specified kind and volume (for example, housing development in Somerset of up to 1,000 houses). They are generally intended to apply at a strategic rather than project-specific level.

Where a developer applies for a planning authorisation for development covered by an EDP, it can request to pay the nature restoration levy (NRL) to NE, after which specified environmental obligations that would normally apply to the developer are disapplied or modified in accordance with the terms of the EDP. These can include, for example, disapplying the obligation on developers to take steps under the Habitats Regulations to assess and avoid harm from nutrient pollution to a specified type of plant in a protected watercourse. An EDP can also specify that payment of the NRL leads to the grant of a deemed licence authorising certain activities that have an impact on protected species.

The government's argument is that developers benefit from being able to make a simple payment to disapply environmental obligations and nature benefits from the delivery of "strategic interventions that provide greater benefit to nature than the status quo".

The most significant changes

Among the many changes to Part 3, the most significant are:

Strengthening the overall improvement test 

The secretary of state (SoS) may now only make an EDP if they consider that the conservation measures it contains "will materially outweigh" the negative effects on the environment of the development it covers by the end date of the EDP, rather than merely being "likely" to outweigh them.

Further, reports at the midpoint, end, and upon any revocation of an EDP must now set out the extent to which the overall improvement test is likely to be, has been, or would have been met. 

Expanding the general duties of NE and the SoS when exercising functions relating to EDPs 

This includes explicitly stating several classic environmental principles including the requirement to take into account the best available scientific evidence and, when an EDP impacts protected species, a duty to have regard to the need to achieve a favourable conservation status for that species in their natural range.

Enhanced controls on the content of EDPs 

Maintenance and sequencing

EDPs must now set out how the conservation measures they provide will be sequenced and maintained. 

Network measures must lead to better outcomes

EDPs can allow harm to occur to an environmental feature of a protected site (for example, to a particular plant in a watercourse) provided they seek to improve the conservation status of that same feature elsewhere (to continue the example, the same type of plant in a different watercourse). The measures elsewhere are referred to as "network measures".

An EDP may now only include network measures where NE considers they would be more effective than onsite ones.

Back-up measures mandatory

An EDP must now include back-up measures that are required to be implemented when monitoring shows existing measures are not sufficiently effective.

Potential role for the mitigation hierarchy

The SoS must now make regulations setting out how NE should prioritise the different ways of addressing any negative effects of development on protected species and protected features of protected sites.

These regulations will apply when NE is preparing or amending an EDP and will set out the extent to which it is required to comply with the mitigation hierarchy, an approach which prioritises measures to avoid environmental harm, followed by measures to minimise it, then measures to mitigate it, and finally those to provide offsite compensation.

NE may request conditions be imposed on authorisations linked to EDPs 

NE may now request that decision-makers, such as local planning authorities and planning inspectors, impose certain conditions on authorisations sought by those using EDPs, including the imposition of planning conditions on planning permissions and requirements on development consent orders. Public authorities are under a duty of cooperation to assist NE with these requests.

Enhanced requirements for the SoS to take remedial action when an EDP has failed to deliver 

Where an EDP reaches its end date or is revoked, and the SoS considers that it has not or would have been unlikely to pass the overall improvement test, they must take any action they consider proportionate to remedy that failure.

Allowing commenced sites to benefit from EDPs 

The requirement that developers could only request to pay the NRL (and so benefit from an EDP) before development commences has been deleted. 

Clarifying the protection for Welsh Ramsar sites 

One of the most high profile changes in the Bill is providing certain Ramsar sites (a type of protected wetland) with additional statutory protection under the Habitats Regulations.

It has now been explicitly provided that the statutory protections for Ramsar sites do not apply to Welsh authorities determining applications for projects in Wales. However, they do apply to Welsh sites affected by development taking place in England. 

What these changes mean for developers

The biggest beneficial change for developers is the move to allow commenced sites to benefit from EDPs. This will be particularly useful for larger and more complex sites/projects which are more likely to evolve as they progress, allowing developers, for example, to seek to make use of EDPs after amendments and variations under sections 96A, 73 and 73B (when enacted) of the Town and Country Planning Act, as well as in relation to applications for retrospective planning permission under 73A.

The majority of the amendments relate to strengthening the protections for nature. The EDP approach is fundamentally about developers paying for measures to be delivered by NE. The greater the level of protection, the higher the likely costs for developers. There are also linked increases in complexity which may slow EDP delivery, including by raising additional grounds for objectors to pursue in court challenges. However, these increases in environmental provision can also be cited by developers as benefits of their proposals.

To date, the government has committed itself to limiting the first EDPs to addressing nutrient pollution, but other details are awaited. With the primary legislation now finalised, developers will be waiting to see the content of the implementing regulations and the speed at which NE progresses EDPs. These steps will provide full answers to the key questions: which environmental impacts will be addressed by EDPs, at what price, and when.

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