Planning and Infrastructure Bill: Nature Recovery

Alastair Lewis and James Goldthorpe analyse major reform proposals to the way in which environmental obligations are discharged within the planning regime.

On 11 March 2025, the Government introduced the Planning and Infrastructure Bill into Parliament with a promise to speed up planning decisions and ‘get Britain building’.

Sharpe Pritchard’s Planning and Parliamentary team have been analysing the likely implications of the Bill in recent weeks.

The focus of this article is on Part 3 of the Bill: “Development and Nature Recovery”, the section of the Bill which proposes major reforms to the way in which environmental obligations are discharged within the planning regime.

Government Case for Reform

Within a few weeks of taking office, the new Government made clear its intention to reform nature conservation in planning.

Penning an open letter to “nature conservation organisations”, the Government described a “status quo [which] is not working”, describing how “environmental assessments and case-by-case negotiations of mitigation and compensation measures often slow down the delivery of much needed housing and infrastructure…[whilst] the condition of our environment…has declined over a sustained period”.

This current landscape – which the Government described in its letter as creating a “lose-lose situation” – is derived from numerous pieces of environmental legislation such as the Habitats Regulations 2017, the Wildlife and Countryside Act 1981 and the various Environmental Impact Assessment Regulations.

As many practitioners in the planning sector will know, the legal obligations imposed by these regimes must currently be discharged on a project-by-project basis through a process of site-specific assessment and mitigation.

For example, in the context of the Habitats Regulations, the current approach can lead to delays and increased costs when likely significant effects of development on a European Site cannot be ruled out, and a potential block on development if an assessment concludes that significant effects on the integrity of the site would likely result.

To deliver the 1.5 million homes and 150 major infrastructure consents promised by the end of this parliament (whilst also meeting its legally binding Environment Act 2021 targets), the Government has decided that a more ‘strategic’ approach is required.

Part 3 of the Bill introduces two new concepts to achieve this reform:

• Environmental Delivery Plans (“EDP”); and
• The Nature Restoration Levy (the “Levy”).

In simple terms, the principle of the reforms is that Natural England will be given powers to prepare EDPs which identify environmental features in a specific area and propose conservation measures to address the impacts of development on those features.

In return for discharging certain environmental obligations (notably those derived from the Habitats Regulations), the Bill provides that developers will be able to pay the Levy, with the receipts going towards the implementation of EDPs.

Environmental Delivery Plans

Clauses 48 to 50 provide the framework for EDPs, which will be prepared by Natural England and formally made by the Secretary of State.

The purpose of EDPs will be to protect what the Bill describes as “environmental features”.

Environmental features are defined as the species which are protected under the Habitats Regulations and other legislation, or the other protected features of SSSIs, SACs, Ramsar sites, or Special Protection Areas.

To protect those environmental features, the Bill provides that an EDP must specify:

• The kind of development to which it applies and doesn’t apply (both substantively and spatially with reference to a “development area”);
• The maximum amount of development to which the EDP applies – for example, an EDP could set a number of new buildings or units that could be given planning permission, and beyond which the EDP would not apply;
• The environmental features which are likely to be negatively impacted by the development of the kind to which the EDP applies;
• The environmental impacts which are likely to arise i.e. the ways in which the environmental features will be impacted by the type of development;
• The conservation measures to be taken by, or on behalf of, Natural England to address those environmental impacts and contribute to an overall improvement to the conservation status of the environmental features; and
• How much those conservation measures are likely to cost, along with a charging schedule setting out how much Levy will need to be paid by developers for each kind of development.

The word “overall” is underlined, because this is a key term in illustrating the strategic nature of the proposals.

It means that, for example, if a protected species is to be affected by development in an area of one county, then this can be counterbalanced by conservation measures implemented elsewhere in the county, or indeed in a different county.

It is also worth noting that one of the types of conservation measure that can be included in an EDP is a requirement for Natural England to request a local authority to impose conditions on planning permissions (clause 50(7)). An example given in the explanatory notes to the Bill is an EDP which deals with the impact of water scarcity, where the planning condition that Natural England could request might require a development to achieve a certain standard of water efficiency.

The notes say that whilst the planning authority would not be under a duty to impose such a condition, there would be a presumption that they would, in accordance with the duty to cooperate in clause 75(2)(b).

Clause 57 of the Bill provides that EDPs will last for a maximum of 10 years and that Natural England will be responsible for producing a monitoring report at the midpoint and endpoint of the EDP’s time in force.

When EDPs are being prepared there will be a consultation period of at least 28 working days on any draft EDP, with mandatory consultees including relevant LPAs for the Development Area.

Interestingly, clause 75 of the Bill provides a power for the Secretary of State to require public authorities to respond to the consultation and assist with the preparation and implementation of an EDP.

Clause 55 provides that before making an EDP, the Secretary of State will need to be satisfied that the EDP passes the “overall improvement test”; meaning they must be satisfied that the “conservation measures are likely to be sufficient to outweigh the negative effect, caused by the environmental impact of development, on the conservation status of each identified environmental feature”. The Bill provides that there will be a statutory challenge period of 6 weeks after EDPs have been made

The Nature Restoration Levy

As explained above, the conservation measures proposed in an EDP will be funded by developers paying the Nature Restoration Levy in the development area to which the EDP applies.

The Bill provides that payment of the Nature Restoration Levy may be at the request of a developer, or mandatory for certain kinds of development, depending on the provisions of the EDP.

Schedule 4 to the Bill sets out how existing environmental obligations – under the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 – will apply where a developer makes a payment of the Levy.

The effect on a developer’s environmental obligations will depend on the environmental features protected by the EDP their Levy payment has funded.

For example, payment of the Levy may result in:

• The impacts of development on protected features being disregarded for the purposes of assessment under Part 6 of the Habitats Regulations, or for the purposes of consenting regimes and notification requirements for the protection of SSSIs under the Wildlife and Countryside Act 1981; or
• The deemed grant of licences in respect of protected species under the Habitats Regulations, the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992.

As each EDP will only address certain ‘environmental features’, the payment of the Levy may not necessarily allow developers to avoid the above environmental obligations completely.

The exemption will only apply to the environmental features covered by the EDP and under which the payment of the Levy is made. So, for example, if there are two protected features of a European site, and the EDP only deals with one of them, a developer may still have to tackle the habitats regulation assessment as regards the other.

Further detail on how the Levy will operate in practice has been deferred to secondary legislation. However, stakeholders should note that the obligation to pay the Levy will bind successors in title and that will be a role for LPAs in collecting the Levy and imposing planning conditions on certain kinds of development to require the Levy to be paid.

Impact of the Proposals

The proposals in Part 3 of the Bill represent a significant step-change in how environmental considerations will be approached in the planning regime.

Whilst the Government has promised a “win-win” for nature and development, several leading environmental charities have already expressed concern that the Bill’s proposals will leave vulnerable species and irreplaceable habitats less protected from housing and infrastructure development. With the Bill reaching committee stage, these issues will no doubt be considered by parliamentarians.

When the Bill receives Royal Assent, it is clear that Part 3 of the Bill will necessitate a significant operation on the part of Natural England to prepare EDPs and, eventually, begin implementing conservation measures.

Adequate resourcing will be central to the success and speed of the regime’s implementation and there may be risks to nature if environmental obligations are disregarded before conservation measures are carried out.

The Government has also stated that “in due course” it will seek to support the implementation of Part 3 to the Bill by bringing forward proposals on Environmental Outcome Reports: the streamlined replacement for Environmental Outcome Assessment set out in Part 6 of the Levelling Up and Regeneration Act 2003. It will be interesting to see how these proposals intersect with the provisions of Part 3.

One aspect of planning and environmental law which will not be impacted by the Bill is the mandatory biodiversity net gain condition which applies to all non-exempt development in England. Even where the Levy is paid, developers will still be expected to achieve a 10% net gain in biodiversity in accordance Schedule 7A of the 1990 Act.