The Planning and Infrastructure Bill heralds a major change in approach for developer impacts on protected sites and species

In the last few months, two families I know have either left this country or are in the process of leaving it. These are people who have lived their whole lives in this country and have worked exceptionally hard over their careers to try to give their children the best start in life they can. However, the omnipresent housing crisis families have endured now for decades has made that impossible. Instead, we live in a country in which our young people enter the world crippled with debt and without the prospect of having their own homes or starting their own families for decades. After years creating a rent-seeking iron cage of an economy, families are voting with their feet and leaving whilst they can in the hope that in other parts of the world homes will be more affordable and education costs less exploitative. No one wants this and yet we can see all around us that housing crisis is dissolving the bonds that held communities together and making us all poorer.

For this reason, this government has set itself the ambitious target of building 1.5 million homes. Indeed, it had to set itself this target, otherwise no one would have voted for it. However, like most governments, it has very little idea how this can be achieved. Since its autumn budget, the government has tried to make the case that the real reason why houses are not being built is because of the legal protection given to newts and bats and that if we can do away with those protections, then all of the myriad deep rooted systemic reasons as to why houses are not being built in the numbers we need, would fall away.

This is, of course, as stupid as it sounds. Not least because a more hidden, yet catastrophic crisis which we have endured since the Second World War is the savage decline in biodiversity. As a result of poor land use decisions made over decades, the decline of many species in this country has been rapid and alarming. For example, according to the British Trust for Ornithology, there are now 73 million fewer birds in the sky than there were in 1970. A total of 97% of our wildflower meadows have been lost in the last 90 years, together with the species that were dependent on those habitats. Moreover, 90% of our wetland habitats have been lost over the last 100 years, decimating wetland species and adding to the water stressed conditions we now experience. Domestic and European laws were put in place as these declines became apparent. However, these rules have simply held the line for biodiversity within protected sites across our landscape and were implemented alongside conflicting policies such as the European Union’s Common Agricultural Policy, which actively subsidised farmers to farm in ways that decimated biodiversity. 

Both these crises were recognised early and could have been averted had better decisions been made. The fact that they haven’t is a massive political failure. As G.K. Chesterton said, “It is terrible to contemplate how few politicians are hanged.”

Part 3 of the Planning and Infrastructure Bill

With this as context, on 11 March 2025, the government published its long-awaited Planning and Infrastructure Bill. This is its flagship piece of legislation which, it says, will finally enable the UK to build the 1.5 million homes and 150 nationally significant infrastructure projects it has promised to deliver over the next five years. 

Part 3 of the Bill deals with nature recovery and development and introduces the biggest change in nature conservation law in England in decades. So significant is this change that it is likely that this government’s reputation on the environment will forever be framed in terms of whether these reforms are successful or not. 

In essence, the government is proposing to introduce the creation of a new Nature Restoration Fund (NRF). The NRF will be comprised of payments made by certain developers covered by newly created Environmental Delivery Plans (EDPs) via a new ‘nature restoration levy’, which will effectively act as a new tax on development. 

According to the government, the purpose of doing this is to streamline the process whereby developers secure the mitigation or compensation needed for their developments, in accordance with the Conservation of Habitats and Species Regulations 2017, the Wildlife and Countryside Act 1981 or other species-specific pieces of legislation. Currently developers assess the impacts associated with their development and then secure the mitigation or compensation they need either themselves or by paying private landowners for the ‘nutrient credits’ or ‘water credits’ that they require. 

However, as the government stated in its Working Paper that preceded the Bill, it will now use the funding levied from developers to ‘deliver environmental improvements at scale which will have the greatest impact.’ This is because, in its view, the current status quo is ‘unacceptable’ as leaving individual developers to fund and deliver environmental mitigation and compensation ‘can hold up development without improving nature.’ The government is therefore proposing a ‘win–win’ solution, which aims to shift more responsibility for these improvements onto the State and away from developers, with the goal of enabling the government to act strategically to accelerate development, whilst ensuring better environmental outcomes (and not falling below existing environmental standards).

The Bill will do this by changing the law as it applies to European protected sites (comprising the National Site Network), Sites of Special Scientific Interest and both European protected species (such as Great Crested Newts and bats), as well as nationally protected species (such as water voles and all wild birds) in areas covered by EDPs.

What has the reception been to the Bill?

In light of the housing crisis and biodiversity crisis touched on above, one would have thought that the reception to the Bill’s promised ‘win–win’ for development and nature would have been warmly received. The reality is that as people have read into the detail of the Bill (or really the lack thereof) they have become increasingly alarmed. Fundamentally, the problem with the Bill is that it does two things badly:

1. First, it aims to replace existing environmental laws with what is essentially a piece of planning legislation, written by the Ministry of Housing, Communities and Local Government (MHCLG). It therefore replaces existing environmental law regimes predicated on rigorous appeals to science with the sort of vague planning policy language favoured by the MHCLG designed to give political decision-makers maximum flexibility. In recent weeks several legal opinions have been circulated by leading Counsel (including David Elvin KC), which have concluded that Part 3 of the Bill would reduce existing levels of environmental protection.
2. It does not give us anything more than what we can currently achieve (indeed, are currently achieving) using the existing legal regimes. For example, the Bill says it will allow for Natural England to deliver nutrient mitigation schemes. But Natural England is currently doing this and has done so without any changes to the law. The Bill calls for a more strategic approach to species and habitat protection. However, we already have had that for years in the form of district level licensing schemes for Great Crested Newts or Suitable Alternative Natural Green Spaces for protected sites with, for example, rare ground nesting birds. Why do away with regimes that are already delivering the things that the new regime is designed to deliver? Furthermore, a likely far more effective way of delivering the benefits the government says it wants would be to do so through strengthening emerging nature markets. This would likely be a far more cost-effective way of allocating resources and swiftly responding to demands than what is suggested here which would lead to enormous government overreach and the creation of even more Natural England bureaucracy. 

It seems that the real reason why the government is doing this is for two reasons:

1. By making loud noises whilst moving the furniture around a bit it gives the delightful impression that something is actually being done to address two of this country’s most vexing problems: the housing and the biodiversity crises. The fact that the Bill will do very little, if anything, to address these problems (and, in fact, may even make them worse) is less important than the performative experience of being seen to be doing something.
2. Second, the government can no longer pay for our public services and this is a way of transferring the funding for Natural England and nature recovery as much as possible on to the private sector through the new nature restoration levy. In the time that I worked for Natural England, its budget went from £265 million in 2008/2009 to £85.6 million in 2019. The budget increased under Boris Johnson, but is now being savagely cut again, with Natural England implementing a voluntary redundancy scheme, which will see it lose around 10% of its workforce (many of whom will be the experienced officers who will be most needed to draft EDPs when the Bill inevitably receives Royal Assent). Senior people at Natural England are welcoming of the proposed changes, but largely because it offers Natural England a lifeline and stable source of funding in uncertain political times. This despite the fact that the Bill would make Natural England a delivery body of MHCLG rather than the Department for Environment, Food and Rural Affairs (Defra) even though the MHCLG would not be responsible for Natural England's budget.

Inevitably, there has been a back lash from environmental NGOs ranging from outrage to understandable resignation that with Labour’s enormous majority, the most they can achieve are modest tweaks via amendments rather than force a complete rethink. A number of amendments have now been proposed as the Bill passes through Committee stage and we will see during ping pong with the Lords how many amendments find their way into the final text. In recent weeks, Matthew Pennycook MP on behalf of the government gave a written ministerial statement announcing the government’s intention to amend the Bill to strengthen some elements in the face of criticism. The campaign group, Wild Justice, led by Chris Packham is now threatening to judicially review the government if Angela Rayner MP does not amend her statement made when the Bill was published saying that it would not reduce environmental standards (a legal requirement under Section 20 of the Environment Act 2021 when the government publishes legislation affecting the environment). 

Conclusion

Things are finely poised, and we will have to see what happens next. Of course, the above is not to say that nature conservation laws, like any other area of the law, shouldn’t be reformed if reform is needed. As one of my intellectual heroes, John Henry Newman, said “…to live is to change, and to be perfect is to have changed often.” I would be happy to back sensible reforms to the law which actually improved the environment and unlocked development. Whilst there is the kernel of something along those lines in the Bill, as currently drafted this is not the solution we actually need. 

Rather, to actually address both the housing and biodiversity crises, far more will need to be done politically to tackle the systemic structural problems within our economy, which are inhibiting development. Doing that is hard work, but necessary. If we substitute that for an approach which is simply performative, then we will neither fix what needs fixing nor protect and enhance our natural environment.