We talk about shifting baselines in relation to the environment. About how if you compare our nature now to five years ago it doesn’t look too bad, but if you compare what we have now to 50 years ago it looks horrific. 

We need to compare the Government’s amendments to the Planning and Infrastructure Bill not to how the bill looked before, but to how our nature laws looked before the Planning and Infrastructure Bill emerged.

Overall improvement test

This is the test that the Secretary of State must apply before they approve an Environmental Delivery Plan. The Government’s amendment does strenthen the test and changes it from “likely to outweigh” to “materially outweigh”. The Government says this provides assurance that outcomes will be delivered and that EDPs must lead to a material improvement for the relevant environmental feature.

However the test is still weaker than the current rule under the Habitat Regulations that a decision maker must rule out all reasonable scientific doubt of an adverse effect on a protected site or species.

The amended test in the Bill is still a subjective test to be applied by the SoS and whilst a separate amendment requires Natural England to use best available science, this does not reach the level of certainty that protected sites and species will not suffer that the current rules provide.

Back-up measures and monitoring

The Government’s amendment replaces Natural England’s ability to include back-up conservation measures within an EDP, with a requirement to do so, and also a requirement to monitor the effectiveness of conservation measures. 

This is a positive amendment but the problem remains that Natural England will still be marking their own homework. They design the EDP, are responsible for their delivery, responsible for monitoring them and are also responsible for deciding whether or not they are delivering the intended outcomes. 

If Natural England decide the scheme they have designed and implemented has been unsuccessful, they are required to deploy the back-up measure. Given the financial constraints on Natural England and the fact they have cancelled numerous projects due to funding cuts over the last year, it is not unreasonable to be concerned that without additional funding that the bill does not provide, Natural England would face difficulties deploying additional conservation measures on top of the failed measures.

Irreplaceable Habitats

The Government’s amendments do not include provisions on irreplaceable habitats. However, the Government have said that the bill does not affect the existing protections in place for irreplaceable habitats under the National Planning Policy Framework and that an EDP would not allow for action to be taken that damaged an irreplaceable habitat as this would, by definition, be incapable of passing the overall improvement test. 

If that is the case, they should put protections for irreplaceable habitats on the face of the bill as the protections provided for in the NPPF can be easily changed by future Governments without any Parliamentary scrutiny.

Sequencing of Implementation

The amendment requires Natural England to include in an EDP an indication of the sequencing of the conservation measures vis-à-vis the development. 

It is remarkable that such sequencing was not required before, but this amendment does not deal with the problem that conservation measures might not be in place for around 10 years after the harm occurs. 

This leaves a huge period of time where nature is at a deficit and protected species suffer. All conservation measures should at least have begun their implementation before development comes forward.

Delivery of conservation measures

The Government amendments acknowledge that the starting position should be that mitigation is delivered locally to the harm. They say that conservation measures that do not directly address the environmental impact of development on a feature at a specific site should only be used where there is a clear environmental rationale for doing so. 

Natural England can only deliver these network measures where they consider that it would make a greater contribution to the improvement of the environmental feature in question than measures that address the impact of development locally. 

The Government says that this change underlines the continued role for the mitigation hierarchy in the design of EDPs, ensuring local conservation measures are preferred. Such a statement shows a lack of understanding of step one of the mitigation hierarchy.

Avoid

This brings us to the fundamental flaw with the whole EDP system. 

It short circuits the mitigation hierarchy, removes the requirement to avoid harm to protected species and habitats and goes straight to the final step of delivering compensation. 

All the amendments go towards improving the likelihood that the conservation measures will deliver what they are supposed to, but none of them go to the fact that compensation is only needed because the Bill makes it easier to kill wildlife and nature in the first place. 

The Office for Environmental Protection’s first letter of advice to the Government warned that, unless the mitigation hierarchy was put onto the face of the Bill ‘the law could allow a protected site to be harmed in such a way as to affect its integrity, even in an extreme case to be destroyed entirely’. 

The amendments do not put the mitigation hierarchy on the face of the bill and until they do the bill will remain regressive.

The Government go to some lengths to try to allay fears that EDPs will not short circuit the mitigation hierarchy. They say that when designing EDPs Natural England will factor in a preference to avoid harm and certain harms could be avoided by planning conditions. 

However, they say harm will only be avoided until a conservation measure is in place. Therefore, they are not avoiding harm, merely delaying it and granting a stay of execution. 

Nothing in the bill or guidance protects the first step of the mitigation hierarchy that the priority should always be to avoid harm to species and habitats in the first place.

Polluter Pays

The Government have said that all the environmental principles must be considered by Natural England in making an EDP. However, the “economic viability” requirement in the Bill completely undermines the polluter pays principle.

When deciding what to charge developers for offsetting the environmental harm developments cause, Natural England must have regard to impacts on the "economic viability of development" and "other actual or expected sources of funding for those conservation measures." 

So if developers argue they can't afford to pay or Natural England gets funding for conservation measures from elsewhere, there is a chance developers can destroy habitats for protected species and not have to pay the full cost of offsetting that damage. This is completely out of line with the polluter pays principle and therefore in conflict with the Environment Act 2021. 

The amendments do nothing to address this breach of the environmental principles.

Summary

When compared to the Planning and Infrastructure Bill as first published, the amendments are a step in the right direction. However, the amendments don’t make the bill good, they just make it a bit less bad.

The fundamental flaw at the heart of the bill is that its core purpose is to make it easier for developers to destroy species and habitats. 

The purpose of the bill is to facilitate the destruction of nature. 

That is why Part 3 of the bill needs to be removed.