How to break the Planning and Infrastructure bill
Let's not waste this opportunity to fix planning
We have made it way too hard to build stuff in Britain. You probably know the worst examples by now, but for those at the back who weren’t listening:
Just under £300m was spent producing a single planning application for a road tunnel – more than it cost Norway to build the world’s longest road tunnel and the world’s deepest subsea tunnel.
HS2, the world’s most expensive railway, has been forced to build a £121m bat tunnel to avoid harming a small colony of Bechstein’s bats.
Hinkley Point C, Britain’s first nuclear new-build in three decades, has been debating regulators over the installation of an acoustic fish deterrent (‘fish disco’) for the last eight years.
The planning application to re-open 3.3 miles of railway between Bristol and Portishead was 80,000 pages long - more than a thousand pages of which were dedicated to bats.
The Government’s Planning and Infrastructure bill is a serious effort to consign the absurdities above to the history books. The really big change is a fundamental shift in the way Britain protects species and habitats.
Under the status quo, we protect nature on a site-by-site, specimen-by-specimen basis. In other words, your railway project can only go ahead if you don’t threaten the habitat of this specific colony of rare bats. This may mean, as was the case for HS2, that the only way you can proceed is by building a £121m bat tunnel to prevent even a single bat death. The fact that you could save more bats nationwide by spending a mere fraction of that money elsewhere is neither here nor there from the perspective of the regulator.
This is, to put it bluntly, a crap system. With the Planning and Infrastructure bill, the Labour Government has put forward an alternative that is a genuine improvement. Site-by-site assessments and specimen-by-specimen mitigations are out, strategic compensation is in. Put simply, instead of adding a £121m bat tunnel to your railway line you can instead pay into a newly created Nature Restoration Fund. This money will then be spent on efforts to protect bats across Britain.
Why is this better? From the perspective of ‘getting stuff built’, it cuts out a massive chunk of bureaucracy. All of that time spent assessing impacts and designing mitigations can be swept aside. Indeed, the trade body for ecologists have warned that removing the requirement for site-by-site assessments would lead to thousands of ecologists losing their job. Job cuts are not usually cause for celebration, but under the status quo thousands of bright people are tied up in zero-sum activities that do little-to-nothing for nature while preventing oodles of productive economic activity.
In short, development can come forward faster. From the perspective of ‘protecting rare species’, it makes it more likely that limited funds available for nature can be spent much better. In other words, fewer £121m bat tunnels, more bat boxes, artificial roosts, and hedgerows.
It isn’t a perfect scheme. To start with there’s a big delivery risk to contend with. The scheme will only work if Natural England can get their act together and put ‘environmental delivery plans’ in place at pace. In other words, Labour’s planning reform plans are reliant on the work of an organisation led by a growth-sceptic former Green Party councillor.
If an environmental impact isn’t covered by such a plan then we revert to the bad old system. Levy rates too must be set at a proportionate level – set them too low and it’s unlikely nature will benefit, but set them too high and developers will either fall back on the old system or pull projects altogether.
Still, if we can get environmental delivery plans in place then the new approach could cut years off development timetables, make building infrastructure cheaper, and unlock serious cash for nature recovery.
The bill can and should be improved, but there’s a real danger that a series of amendments pushed by green campaigners will leave this new approach dead on arrival. Britain will be stuck with bat tunnels, fish discos and 300,000 page planning applications unless MPs can stop these amendments.
The threat to the bill
I have to admit when I learnt the Government planned to disapply the Habitats Regulations (in certain circumstances) I expected outrage from green NGOs. In fact, the response was rather muted. The RSPB and Woodland Trust were even reported by The Times as ‘broadly welcoming the changes’.
Yet, it appears the real strategy isn’t to oppose the bill outright with the sort of letter-writing campaigns that sunk past efforts at reform, it is to amend by adding ‘safeguards’ that, in effect, defeat the purpose of the bill.
Some campaigners give the game away. For example, the Wildlife Trusts appear to have missed the Prime Minister’s repeated complaints about £100m bat sheds and have called for the bill to be rewritten to take “site-loyal species like bats and hazel dormice off the table for NRF from an early stage.” Matthew Pennycook MP, the Housing Minister, appears to have ruled that out sharing a blog stating: “the new Nature Restoration Fund in the Planning and Infrastructure Bill will mean an end to poorly-targeted, time-consuming and expensive environmental mitigations like HS2's bat tunnel.”
Other campaigners are more subtle. If green NGOs were trade unions, Nature and Countryside Link would be the equivalent of the TUC. Its members include everyone from the RSPB and the Bat Conservation Trust to Greenpeace and Friends of the Earth. Ahead of the bill’s Second Reading, they put forward a number of changes to the bill that if adopted would turn the Planning and Infrastructure bill from a potentially transformative document to something that’s for all intents and purposes not that different to the status quo.
Many of their proposals appear, at first glance, relatively innocuous. For example, they have proposed creating a new legal duty for development to contribute legally-binding climate and nature targets. Sounds harmless, but the issue with such requirements is they create new avenues to challenge development in the courts. Is that something we really want to do in a world where already every single major road development is challenged in the courts? And even green offshore wind farms can be delayed for years by legal challenges. In general, Britain needs fewer vague legal duties. Too often, they turn genuine democratic political choices into dry questions of legal process and bake further delays into the system.
They also want to use the law to change the building regulations to mandate “nature-friendly” building features like bee bricks and green walls. While I’m sure in some cases, such measures can be cost-effective ways of protecting nature, there will inevitably be unintended consequences. For example, my local council insisted on all new developments including ‘bee bricks’ yet ecologists dispute whether they actually work with some suggesting they may do more harm than good.
The biggest area for concern are the proposals to water down the Environmental Delivery Plan (EDP) proposals to homeopathic levels. At first glance, the measures appear to be relatively modest tweaks yet taken together they would remove many of the advantages of using the new strategic approach.
There are five key proposals:
“Significant environmental improvement”: At the moment, EDPs can only be agreed if the benefits for nature outweigh harm – this is known as the ‘overall improvement test’. Nature and Countryside Link want a tougher standard: significant environmental improvement’.
“Avoiding harm”: If adopted, this amendment would create an explicit duty for developers to avoid harm to nature wherever possible even if an EDP is in place.
“Upfront mitigation”: This would require that mitigation is delivered upfront in most cases, and always in cases where there’s a risk of irreparable damage (e.g to chalk streams). Under the existing proposals, it would be possible for development to proceed even if things get worse in the short-term provided there is a long-term improvement.
“Rigourous, scientific evidence”: EDPs as proposed would still require high standards of evidence to be put in place, but Nature and Countryside Link want to add an additional requirement that EDPs use an even higher standard of evidence including site-specific surveys to show that the strategic approach would lead to a significant environmental improvement.
Harder to amend: Under the current proposals, the Secretary of State will be able to amend EDPs, for example, if they’re making it too difficult for development to proceed. This proposed amendment would restrict the power to only allow amendments that would increase benefits for nature.
The amendments appear relatively uncontroversial. After all, who can oppose ‘avoiding harm’, bigger environmental improvements, or requiring more rigorous scientific evidence. The issue is that putting these requirements into practice will make it much harder to put EDPs in place, lead to more excessive environmental surveys, and delay development.
The nature campaigners pushing the amendments might deny this, but under the status quo development is proceeding too slowly (or not at all) due to existing environmental requirements. The whole reason we are debating changing the Habitats Regulations is because of a recognition that the status quo isn’t working for development. Britain needs more wind turbines, railways, homes and roads, but existing nature protections have meant development moves at a snail’s pace.
For example, take the requirement to demand more rigorous scientific evidence. Part of the problem with the status quo is the sheer scale of evidence required to proceed with even uncontroversial developments. It is currently not possible to get planning permission to build an offshore wind farm without producing a 10,000 plus page environmental impact assessment. Greens typically like public transport, but the status quo meant that the planning application to reopen 3.3 miles of track between Bristol and Portishead was 80,000 pages long, with a thousand or so pages dedicated to bats and newts (the full environmental impact assessment was 17,912 pages long.) It is in this context we have to ask ourselves: do we want even more surveys and assessments?
In the case of the requirement for upfront mitigation, the impact will quite clearly be delays to development with projects only able to proceed when green schemes are up and running. Similarly, the duty to avoid harm will mean that even when an environmental delivery plan is in place, many of the existing assessments and mitigations will still take place. There might be some benefits (e.g. complicated mitigations can be resolved sooner) but the large time-savings promised by the government won’t be realised.
But, part of the issue with these amendments is the way green activists and NIMBY campaigners would be able to use them to delay and block development through the courts. More evidentiary requirements and the requirement for a significant environmental improvement will translate to more grounds to challenge
Likewise, the requirement that EDPs are only put in place if they can be shown to deliver a significant environmental improvement is a problem because of the way risk-averse regulators like Natural England will implement them. It isn’t enough for the people developing the EDP to be confident that the measures will improve things for nature, they will need to be able to prove that to the extent that the EDP cannot be challenged in courts. Under the status quo, Natural England will likely already be aiming to go further than a neutral (or modestly positive) impact as an insurance against the risk of legal challenge.
In practice, if significant environmental improvement is the hurdle then EDPs will only be put in place if they go even further and deliver a large environmental improvement. Where that’s not possible, EDPs will simply not come forward and we’ll be stuck with the broken status quo. The same is true of the change on Secretary of State amendments. The practical result will likely mean that even changes which increase benefits do not get made because of legal risks and the need to have sufficient evidence.
Think about the bigger picture
Our planning system has made it impossible to deliver enough of the homes, power stations, and transport links our economy needs. Britain invented the steam engine, built the first railway, and forever revolutionised industry. We switched on the grid, split the atom and built the first full-scale civil nuclear power station. But all of this feels impossible today – not only is this economically disastrous, but it also undermines the public’s trust in politics. In Madrid, politicians run for office on pledges to expand the transport network and are able to actually build the new lines and stations within a single term. In Britain, you’d be lucky to get a planning application approved in a single parliamentary term.
The system we have represents the worst of both worlds. Not only does it make it nigh-on impossible to build infrastructure at an acceptable pace, it also forces us to protect nature in some of the most inefficient ways imaginable.
The Planning and Infrastructure bill is an attempt to change that. To reverse our slow-moving economic decline by making it easier to build the homes and infrastructure we need. And at the same time, protect nature better through a smarter strategic approach. Even a watered-down version of environmental development plans is likely to be preferable to the status quo, but that shouldn’t be the test for the bill.
The time for complacency is over. It isn’t enough to make our very bad planning system a teensy-tiny bit better, we need radical reform. The reforms to nature protections in the Planning and Infrastructure bill could and should go even further, but they’re a big positive shift. If they are blocked or even watered-down then Labour’s promises to build 1.5m homes, approve 150 infrastructure projects, and almost entirely get gas off the grid by 2030 are dead on arrival.
Great essay.
This is brilliant Sam. Well-researched, well-argued and alerting us where the danger that it will be watered down is coming from