Last week, the UK Government tabled amendments to the Planning and Infrastructure Bill in the House of Lords to introduce safeguards for nature it claims would prevent existing environmental protections being weakened.

The proposed changes come after months of campaigning by environmental organisations, including Suffolk Wildlife Trust members and supporters, and seek to address aspects of the bill that the Office for Environmental Protection described as ‘environmentally regressive’ – i.e. weakening legal environmental protections.

While the amendments do improve the safeguards for nature in some key areas – for example, strengthening the requirement for evidence that ‘Environmental Delivery Plans’ will deliver an ‘overall material improvement’ for the environmental feature in question – they still leave the door open for development to do potentially avoidable harm to nature without having to pay the full cost of delivering measures to mitigate / compensate for that harm.

[1 EDPs are the central mechanism proposed in Part 3 of the bill for mitigating environmental impacts ‘strategically’, i.e. in a different location from where those impacts occur, funded by developers paying a ‘Nature Restoration Levy’.]

Three things the Government still needs to do to prevent the bill from weakening legal protections for nature: 

1. Support the mitigation hierarchy – the mitigation hierarchy states that environmental harm must be avoided if possible as a first step, before considering mitigation or compensation for damage done. This is a common-sense approach and apart from preventing environmental damage, can save developers time and money. The Government says it supports the mitigation hierarchy and that developers will be required to comply with it, but this is not explicitly stated in the bill. This should be an easy omission to fix.

    

2. Safeguard irreplaceable habitats – similarly, the Government says it recognizes that some environmental features simply cannot be replaced or recreated elsewhere if the are lost or damaged. Such features include ‘irreplaceable habitats’ like ancient woodlands, fen wetlands, ancient chalk grasslands. Once they are gone, they are gone forever. It is claimed such features could not be subject to an EDP because the ‘overall improvement test’ could not be met, but this test, however rigorous, will still ultimately come down to the subjective judgement of the Secretary of State, and irreplaceable habitats are only protected in planning policy (which is easily amended), not in law. This would be easily overcome by explicitly excluding irreplaceable habitats from the environmental features to which an EDP could apply.

    

3. Uphold the polluter pays principle – this is the principle that the person (or organization) responsible for damaging the environment is responsible for paying the cost of remediation. It is one of the principles in the Government’s Environmental principles policy statement, enshrined in law by the Environment Act 2021. The Planning and Infrastructure Bill risks undermining the polluter pays principle though, by including a viability clause that would allow developers to argue that the cost of remediating environmental harm through an EDP is too high, so they should not have to pay it. In this situation, environmental damage could go unmitigated, and the bill doesn’t include any provision for how this would be addressed – or who would pick up the bill.

Other improvements the Government could and should make include providing more detailed criteria for how the effectiveness of a proposed Environmental Delivery Plan will be assessed, to ensure this process is objective and evidence based. 

Thank you to everyone who has spoken up for nature in the bill so far. We will keep pushing for essential changes and improvements to the bill for nature as it continues its journey through the House of Lords before returning to the House of Commons in the autumn. 

Unless and until these changes are made, Part 3 of the bill will still weaken environmental protections, and risks leading to development that delivers worse outcomes for nature in the future than it does now.

Rupert Masefield,Planning and Advocacy Manager at Suffolk Wildlife Trust