Richard Broadbent, environmental lawyer at Freeths, says

“The provisions introduced in Part 3 of the Planning Infrastructure Bill mark the most significant changes to nature law in England (under the Conservation of Habitats and Species Regulations 2017 and the Wildlife and Countryside Act 1981) since the law originally came into force in England. Should these provisions come into force as drafted, the Labour Party’s credentials on the environment will forever be framed in terms of whether these changes were a success or not.

 “Whether or not one views the proposed changes to the law as a sensible idea, simply getting this new approach off the ground will be a massive challenge, both for the Government and for Natural England which has been tasked with its delivery. Natural England’s budget is already under pressure and yet it will now need to (i) find out about what development is forthcoming, (ii) assess the impacts of that development on both protected sites and species, (iii) decide how those impacts should be addressed through environmental measures ; (iv) consult on and draft the new Environmental Delivery Plans, (iv) have these Plans approved by the Secretary of State, (v) implement Plans; and (vi) monitor those Plans.   The Government has been  saying that existing nature laws hold up development because developers have to spend so much time assessing and addressing their impacts but Natural England has now been tasked with this on a massive scale! Government will need to very significantly increase Natural England’s budget to equip it with the resources it will need or there will be a lengthy delay before these Delivery Plans will come into effect.

 “The scale of the proposed changes to the law will be construed by many as a sledgehammer to crack a nut given that strategic nature restoration schemes are currently being successfully delivered across the country in accordance with existing legislation. Furthermore, the uncertainty caused by these changes may create further delays and increase costs.

 “By making these amendments, the Government is introducing a “two-tier” approach to environmental protection. This will consist of the existing nature law standards which will continue to apply to development not covered by these new Environmental Delivery Plans and a more “relaxed” approach to environmental protection for those developments which will in due course be covered by these Plans. Whilst some developers may look on these reforms as an easier and more straight-forward approach than the current position, there will be many people in the environmental sector who will be concerned that this two-tier approach will weaken existing environmental standards and oversimplify matters which are far from simple.”

Ben Sharples, Partner and Head of Natural Capital at national law firm, Michelmores, says:

"Environmental damage caused by development will be dealt with by a one stop shop of Environmental Delivery Plans (EDP) but it need not deal with all such impacts.

"EDPs will have to be costed which is going to be an educated guess at best. If those sums are not correct then the environment could be short changed. The private markets which are already in place leave the environment in the best position as any shortfall must be met by the landowner.

"EDPs do not appear to currently affect the mandatory biodiversity net gain regime although there are broad powers which will allow Natural England to consider other issues in due course.

"An EDP can be revoked if it no longer passes the "overall improvement test." This means an EDP could be scrapped half way through if the conservation measures are unlikely to be sufficient to outweigh the negative effect of the development. This is not an option with private market approaches like nutrient neutrality where the commitment is made at the outset and has to be honoured. There are steps that the Secretary of State may take to mitigate the damage that development continues to cause but there is no binding obligation as there is with the private market approach.

"The payment of a nature restoration levy will free a developer of the current nutrient neutrality regime and actually prevents them from seeking their own solution through the private markets. This seems entirely contradictory to the Government's previously stated position that they are "crowding in private markets" and the fiscal reality that their much heralded Landscape Recovery Schemes will be heavily dependant on such nature based market income.

"As a final blow to the principle of letting private markets operate in order to generate efficiencies and find true market value the nature restoration levy can be calculated by taking into account the economic viability of development which can be assessed by taking into account the imposition of the levy. This would appear to allow Natural England to set lower levy rates if realistic ones would have made the development unviable. Many would regard this as looking through the wrong end of the telescope."