Planning and Infrastructure Bill represents legislative “regression”, environmental watchdog says

The provisions in the Government's forthcoming Planning and Infrastructure Bill are a "regression", the Office for Environmental Protection has warned.

In a letter to the Secretary of State for Housing, Communities and Local Government, Angela Rayner, the watchdog said much of what the bill is seeking to achieve "would be beneficial", but raised fears about diminishing environmental protections.

The organisation welcomed the proposed join-up between Environmental Delivery Plans (EDPs) and both the Environmental Improvement Plan and Local Nature Recovery Strategies set to be featured in the forthcoming bill.

It also voiced support for plans to take a more strategic approach to addressing environmental challenges such as nutrient overloading.

However, the OEP warned the bill "would have the effect of reducing the level of environmental protection provided for by existing environmental law".

The letter, sent on Friday (2 May), continued: "As drafted, the provisions are a regression. This is particularly so for England's most important wildlife - those habitats and species protected under the Habitats Regulations."

A principal area of concern for the OEP lies with the framing of the bill's 'overall improvement test' for adopting EDPs.

The letter said: "This test rests on a balancing exercise to decide whether negative environmental effects of development are likely to be outweighed by conservation measures taken under an EDP.

"As drafted at the moment, that exercise would allow considerably more subjectivity and uncertainty in decision-making than under existing environmental law. We advise that the overall improvement test should be strengthened to address this."

Elsewhere, the OEP highlighted measures in the draft bill that allow for conservation measures to be located away from the protected sites affected by development.

On this, it said: "Currently, this is only permissible in limited circumstances and where the overall coherence of the protected site network is maintained. Such safeguards are absent from the bill.

"Undermining the network of protected sites could affect the Government's ability to meet its legally binding biodiversity targets and '30 by 30' objectives.

"We advise that the lack of safeguards for the overall sites network is rectified, given the role they play in efforts to meet statutory nature targets."

The OEP's warning comes a day after wildlife campaign group Wild Justice claimed the draft bill would also diminish the current level of environmental protection provided by existing law.

The group said it commissioned two planning barristers to review the potential effects of the bill.

"The opinion highlights a key factor as being the removal of the requirement to be sure beyond reasonable scientific doubt that a development would not have a negative impact on a protected site", Wild Justice said.

It continued: "It would instead allow developers to pay into a so-called 'nature restoration levy scheme' to attempt to mitigate any environmental harm caused, which Wild Justice says would be meaningless because the Secretary of State wouldn't have to judge the level of mitigation on the basis of rigorous scientific evidence, but rather on the vague 'likelihood' that mitigation may be at an appropriate level."

The campaign group also suggested that the bill would relax the circumstances where developers would be allowed to cause harm to the environment and allow for a significant or permanent loss of species at a protected site so long as it is compensated for at another site.

Leigh Day partner Ricardo Gama, who represents Wild Justice, said: "The 2021 Environment Act introduced obligations on the Government to be open and transparent about whether any new laws introduced post-Brexit would reduce the current level of environmental protection.

"The Housing Secretary has said that this bill does not reduce current environmental protections, but Wild Justice does not believe that that to be the case."

The Green Construction Board (GCB), the Biodiversity Net Gain and Environmental Net Gain working group, and the Association for Consultancy and Engineering and Environmental Industries Commission also raised concerns in a joint letter on Friday (2 May).

Writing to the Minister of State, Housing, Communities and Local Government, Matthew Pennycook, the groups questioned Part 3 of the bill, which introduces the new approach to environmental protection, including a Nature Restoration Fund (NRF) and EDPs.

The three groups called for the Government to consider a different commencement date and a pilot programme for the part 3 provisions.

The Ministry of Housing, Communities and Local Government has been approached for comment.

Adam Carey