Plans to water down environmental protections have been tweaked in an effort to stem another backbench Labour revolt. Two lawyers on either side of the debate give their views on the implications for development as the bill works its way through Parliament
The Planning and Infrastructure Bill is currently making its way through the House of Lords. A key plank of Labour’s plans to “get Britain building”, the bill aims to cut red tape for developers and streamline approval processes needed before spades can get in the ground.
While it has been widely welcomed by the development sector, the proposal to relax nature protections has proved controversial among environmental campaigners and some backbench MPs. Under the original proposals, requirements for site-specific environmental improvements on schemes would be replaced by payments to a centralised nature restoration fund. This would allow Natural England to devise environmental delivery plans (EDPs), which would replace site-specific interventions with the intention of avoiding excessive delays.
No doubt seeking to avoid a repeat of the backbench rebellions on welfare seen in recent months, the government has now amended the bill to strengthen EDPs. To explain the potential implications of this move, Building asked a planning lawyer and an environmental lawyer to give their views on what the amendents could mean for development.
Striking the right balance between protecting the environment while allowing developers to push towards national housing goals is going to be a difficult feat
Kylie Wesson writes…
The Planning and Infrastructure Bill has been the subject of widespread debate and contributed to a stark divide in opinion, particularly on the topic of environmental protections set out in part three. As the government originally sought out to streamline housing delivery by reducing restrictive obligations placed on developers, it is no surprise that there has been a considerable backlash.
Wildlife organisations, along with some backbench Labour MPs, have voiced serious concerns, with the government swiftly responding in the form of further amendments which seek to strengthen the environmental protections, and quiet the growing noise of criticism. Striking the right balance between protecting the environment while allowing developers to push towards national housing goals, however, is going to be a difficult feat.
Despite the changes seeking to address concerns surrounding the effective delivery of conservation measures, they do not, currently, place any additional burden on developers. Rather, this burden is placed on the secretary of state and Natural England, as the delivery body of these new measures.
Notably, the changes seek to strengthen the environmental delivery plans (EDPs) introduced in the initial bill. First proposed to standardise environmental mitigation, and reduce the need for site-specific assessments, EDPs had positive implications for developers who often experience delays in housing delivery due to environmental obligations.
In light of the amendments, however, EDPs will now be required to set out anticipated timescales for conservation measures, along with back up measures if original plans fail. This will be monitored closely by Natural England, and the secretary of state will also be required to deliver remedial action where both original and back up measures do not deliver the required outcome.
The housebuilding process is likely to be slowed down as a result of increased protections through strengthened EDPs
In practice, these changes are likely to increase timescales for the preparation of EDPs, delaying their implementation and, subsequently, the housebuilding process.
While developers will not be carrying the weight of these amendments, it is safe to say that the housebuilding process is likely to be slowed down as a result of increased protections through strengthened EDPs. The recent changes feel like a reasonable response to the criticism around environmental protection, but it will now be crucial for the government to keep its growth agenda at the forefront of next steps, to prevent any further impact on developers.
It is also important to question whether the bill, as we now see it, will stand the test of time. Will these changes go far enough to settle the discontent from those who first opposed the legislation?
If more restrictive measures are introduced, the government risks stagnating the entire housebuilding process, moving ambitious targets further out of reach. For the moment, developers can breathe a sigh of relief, but they will need to watch closely to see whether the fundamental principles of this important piece of legislation will, in fact, remain.
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A modest win for environmental groups, who have worked hard to ensure that the reforms under the bill do not amount to a regression in standards from pre-Brexit levels
Richard Broadbent writes…
Following the publication of the government’s amendments watering down its proposed reforms to wildlife laws under part three of the Planning and Infrastructure Bill, the chancellor, Rachel Reeves, told the House of Lords economic affairs committee that she ws more interested in “getting a young family on the housing ladder” than “protecting some snails”. While it is not official government policy to try to tackle this nation’s rampant housing crisis at the expense of our disastrous biodiversity crisis, rhetoric like this from our most senior politicians suggests this really is seen by many as an either/or dilemma.
That is a both a shame and bad policy, as people in this country, especially young families, quite rightly expect that it should not only be fit to live in (in terms of the housing available), but also that the quality of its natural environment should be robust for those young families to grow up in and enjoy.
So what do the government’s amendments to its bill mean for developers? Well, the bottom line is that these amendments will make Natural England’s task of preparing EDPs much more difficult. This means it will take longer for plans to be produced and the cost of producing them will be much more expensive.
That will be bad news for developers looking to benefit from the introduction of EDPs, as they will need to wait longer for the plans to be produced and will potentially need to pay more into the nature recovery funds created to pay for the conservation which they will deliver.
The government’s amendments will, for example:
- Require Natural England to have regard to the conservation objectives and favourable conservation status of protected sites and species, which will require a further level of analysis (although will be more like the existing regime).
- Include more onerous monitoring mechanisms for EDPs and feedback loops if they are failing, (which will make them more complex to write and add to costs).
- Include additional measures to address the problem of time lags between conservation measures being delivered under an EDP and the impacts of development taking place (again adding to their complexity and cost).
- Require the introduction of remedial measures if the conservation measures created under EDPs do not deliver as intended (an enhanced requirement which will likely require Natural England to bake into the nature restoration fund levy paid by developers the cost of both the conservation measures and, even if they are not needed, the various remedial measures).
Importantly, conservation measures must also now “materially” outweigh the environmental impact of development, with conservation measures being defined as addressing development environmental impact AND contribute to the overall improvement in conservation status of features included in EDPs. That more enhanced legal duty will mean plans need to be more comprehensive than originally intended by the government.
These amendments are a modest win for environmental groups, who have worked hard to ensure that the reforms under the bill do not amount to a regression in standards from pre-Brexit levels. Also, for developers concerned about the reputational risks of being associated with a new regime which environmental groups have branded regressive, these amendments will provide confidence that the regime is more capable of securing the promised “win-wins” for nature and development.
Developers will need to think carefully about whether they stick with the costs of complying with the current regime or twist and put their hopes in EDPs coming forward in a timely and cost-effective way
For developers, this is a head scratcher. When this becomes law, the government will rebadge existing schemes Natural England is working on as EDPs, giving the impression that the change in law has produced immediate results. However, after this initial sugar rush of headlines the real task of drafting plans in accordance with this regime (and its accompanying secondary legislation and guidance) will commence.
That is likely to be a long slog unless the government injects more and more cash into Natural England to speed things up, adding to the overall costs of the new regime. Should that happen, the government may look to developers pay the difference.
All this means that developers will need to think carefully about whether they stick with the costs of complying with the current regime or twist and put their hopes in EDPs coming forward in a timely and cost-effective way. Weighing up those risks will require them to understand and make informed decisions about yet more environmental law and policy.
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