The tale of the snail and the much-delayed rail

Not since 1932, in the famous case of Donoghue v Stevenson, has a snail been held up to be a mischief to society, but over 90 years on, our native mollusc is the cause of trouble again. This time, along with bats, newts and jumping spiders, snails are being accused by the Government of delaying the building of homes, infrastructure and our economy. The result has been a highly controversial Part III of the Planning and Infrastructure Bill, and a mooted new Planning Bill, which, if reports are to be believed, will remove some of the species from the list of those protected by UK law, limit legal challenges from environmental campaigners and abolish the EU “precautionary principle” that forces developers to prove new projects will have no impact on protected natural sites.  With housing and nature in major crisis, and the solution centring on the use of space, how local leaders make decisions will have a lasting impact on place, people and politics for years to come.

Distinct problems…

For local leaders, and the lawyers that advise them, trying to reconcile the distinct crises of housing shortages, economic stagnation and biodiversity/environmental loss, is all too familiar. 

We are at a tipping point now though, where decisions seem to be increasingly impactful for good or for bad. Take housing for example. The worrying gap between demand and supply continues to increase. One in every 200 UK households is experiencing homelessness and councils are spending £2.29bn a year on temporary accommodation, impacting over 165,510 children (a 14% increase on the previous year, and a new record for the eighth straight year). Doing nothing will have major consequences for many millions of people.

The UK is in the unenviable position of being one of the world’s most nature-depleted countries, ranked in the bottom 10% internationally for biodiversity. It is accepted that our conservation approach, to protect and preserve what we have, has not been enough. In response to this dire situation, the UK is creating a world-first –a regime which is established in law (rather than policy), that must result in a measurable net gain in biodiversity (as opposed to no net loss), in nearly every development in England.  The erosion of even the basic protections, as recently indicated by the Chancellor and as drafted in Part III of the PIB, without an adequate alternative, may lead to a crisis that nature cannot recover from.

…Same solution

The problem for Central and Local Government decision makers is that whilst these are distinct crises in their own right, the primary solution to both is the same: more space. To build housing and infrastructure, developers need space that is viable to build on, meets planning requirements and is preferably close to supporting provisions. Nature needs space which is high in quality, larger in scale and more connected.

Since the UK is a relatively small island with a moderate to high population density and limited available space, we need to find ways for nature and development to co-exist in a way that reverses their current trajectories. But the reality is, they haven’t played well together.  The expansion of urban areas is one of the largest causes of nature loss globally. As well as habitat clearing and the associated threats that new infrastructure brings (e.g. noise, artificial light, pollution, etc), a fragmented approach to planning has led to sub-optimal biogeography in the UK. Natural environments have become unconnected islands in a sea of urban development and agricultural land. The net result is smaller, isolated habitats, making species more vulnerable to localised and then national extinction due to the inability to move away from or recolonise after adverse events.

This explains why, despite improved development control and increased environmental regulation, UK wildlife continues to decline. Conversely, the complex web of environmental protection regulations has been linked to delaying/preventing housebuilding. Whilst some small concessions can be permitted to achieve a greater good, everybody will lose if we entertain wholesale sacrifices of nature for housing and infrastructure, and that appears to be the way the Government is going. 

Two Bills, no balance.

The government’s ambition of building 1.5m homes this Parliament should be commended. Wholesale changes to the National Policy Planning Framework, nationwide devolution and returns to spatial planning indicate that the government had identified many of the critical levers needed to make this target achievable. Early indications showed they were equally committed to the restoration of nature. However, more recent communications framing nature as a barrier to growth, and the drafting and subsequent redrafting of Part III of the Planning and Infrastructure Bill (PIB), suggest otherwise. 

Part III of the PIB, for example, has been heavily criticised by influential organisations like the Office for Environmental Protection, CIEEM and the Wildlife Trusts, for significantly eroding environmental protection. Even after some well-meaning amendments, Part III continues to bypass the mitigation hierarchy (avoid, minimise, restore, offset), enabling developers to go straight to an offsetting levy paid to Natural England.  The Office for Environmental Protection has confirmed that the Bill, as currently drafted, would have the effect of reducing the level of environmental protection provided for by existing environmental law.

Now, if reports in the national press are correct, the Chancellor Rachel Reeves wants a new Planning Bill to go significantly further to reduce delays to infrastructure projects and growth. Those reforms could include:

• A smaller, UK-only list of protected species being planned, which would place less weight on wildlife — including types of newt — that is rare elsewhere in Europe but more common in Britain.
• The removal of the “precautionary principle”, freeing developers to build without the need to prove their infrastructure project would have no impact on natural protected sites. This will be replaced by a new test that looks at the risks and benefits of potential projects.
• Allowing only one judicial review claim against infrastructure developments.

It is important to stress, these are in the very early stages of consideration, but concerns exist about whether this really is the “win-win” for nature and the economy that the Government is presenting and that presents issues for local government leaders.

Is it really a win-win for nature and growth?  

In fairness, the amendments made to the first draft of part III of the PIB are a step in the right direction but, for reasons set out above, it is hard to justify that this Bill or the newly proposed Planning Bill, are a win for nature. The amendments have not, for example, restored the environmental protections lost with the mitigation hierarchy, nor have they dealt with some of the issues caused by the introduction of Environmental Development Plans (EDPs) and the Nature Restoration Levy. For example, even though there is a non-ministerial statement that irreplaceable habitats cannot be included in EDPs, they do not yet have formal legal protection under Part III. 

So, if it cannot be a win-win, is it at least a win for growth? On the face-of-it, the idea of removing all environmental protections does sound appealing if you want to make sure your development happens, but it is not as simple as that. The government’s own impact assessment on the PIB confirms that there is little if any evidence that protections for nature are blocking developments, with Natural England confirming that 99% of the projects they are consulted on proceed to spades in the ground (with nature protected too). 

If it won’t lead to more developments being approved, will they at least result in them being realised quicker? Well, yes but not considerably so. The amendments placed significantly more burden on Natural England as the delivery body for EDPs. EDPs will now be required to set out anticipated timescales for conservation measures, along with back up measures if original plans fail, making their preparation by Natural England far more difficult, leading to increased delay and costs, the latter of which will get passed on to the developer. There will also be arduous monitoring requirements and complex feedback loops to navigate if they are found to be failing. 

Under the proposed amendments, developers would also still need to do extensive ecological surveys before buying/promoting land, but they won’t know when a relevant Environmental Delivery Plan (EDP) will drop, what the levy will be and how it will be used. The PIB, as recently amended, also leaves it open for national/local conflict with developers potentially being subject to a levy via the PIB but also still having to go through the mitigation process via local plans.

It is hard to justify such significant costs to nature, when the benefits for growth are not as pronounced as initially hoped. When trying to solve any crisis it is important to identify the three-to-five critical levers that, if pulled, will make the biggest impact. It is hard to conclude, based on the above, that eroding environmental protections is one of those levers. There are bigger issues for housing, for example, the affordability of mortgages and homes. 

Could it be a lose-lose?

Ultimately, the role of decision-makers in local government is to help the people that live in their place to thrive. Having a home is the foundation of that, and that is only possible if they have the infrastructure in place to help them stay there (good local economy, access to amenities and so on). 

There is real concern that if the bill becomes law as drafted, and the Chancellor’s proposed reforms become reality, we will see our places worsened. These reforms are expected to further damage UK biodiversity levels, lead to more frequent extinction events, and reduce our urban green/blue spaces, particularly for those who live in deprived areas. It is now well established that the provision of quality habitats in urban areas make a significant contribution to physical and mental health and general habitation experiences, making the challenge of reconciling housing growth with nature restoration not just an environmental one, but a social one too. As local leaders try to reconcile how to create great places to live for the sake of their constituents, they are likely to have to understand how all of this new planning and environmental reform, will translate into practice. It may be the Government that makes the rules, but communities will look to local leaders to ensure the place they live in retains its most important natural surroundings.

Christopher Kerr is Head of ESG at Davitt Jones Bould.