The Planning and Infrastructure Bill – Nature Recovery and the Nature Restoration Fund
The Planning and Infrastructure Bill (the Bill) was introduced to Parliament in March, after having been first announced in the King’s speech in July 2024. The Bill is part of the Government’s wider planning reform programme and aims to “speed up and streamline the delivery of new homes and critical infrastructure”. We have summarised the key provisions of the Bill in our article here.
Part 3 of the Bill turns to ‘Development and Nature Recovery’. The provisions are complex and introduce a major step-change in how developers must mitigate the environmental effects of their developments, by essentially establishing a ‘Nature Restoration Fund’ which will mark a wholly new way for developers to discharge environmental obligations.
The aim of the proposals is to enable developers to address environmental obligations more efficiently, by providing them with an option to pay into a centralised ‘fund’ which will relieve them of certain obligations relating to protected species and protected sites – effectively passing the baton of delivering any required environmental mitigation as a result of the development to the Government.
The Bill establishes two new tools to deliver the changes:
- Environmental Delivery Plans; and
- A Nature Restoration Levy
We have summarised how these tools are intended to work below and aimed to answer some of the key questions that developers and practitioners may have.
Environmental Delivery Plans
An Environmental Delivery Plan (EDP) is a plan prepared by Natural England and made by the Secretary of State. An EDP will relate to specific types of development in specific areas in England and it will set out the conservation measures that are required to be put in place to mitigate the environmental impact of the specified development. Where an EDP is in place, developers can pay the Nature Restoration Levy which Natural England will use to implement the necessary measures. There therefore may be certain areas England and Wales which benefit from EDPs at any one time, and vice versa.
What will EDPs include?
The EDP must set out (amongst other things):
- the environmental features that are likely to be negatively affected by the development and the conservation status of each identified environmental feature at the start date of the EDP;
- the conservation measures that are required to protect those environmental features, why those measures are considered appropriate and any alternatives to the measures that Natural England considered (and why they were not included);
- the cost of the conservation measures;
- the amount of the nature restoration levy that is payable by developers to Natural England to cover the cost of the necessary conservation measures (and the EDP will include a charging schedule which sets the rates for the calculation of the levy); and
- the environmental obligations that are discharged if the developer pays the nature restoration levy.
Environmental features may be either:
- A protected feature of a protected site (e.g. any habitat, species or geological, physiological or physiographical feature of a European site, an SSSI or a Ramsar site); or
- A protected species (being a species listed in Schedule 2, 4 or 5 of the Habitats Regulations 2017 or protected by Part 1 of the Wildlife and Countryside Act 1981 or the Protection of Badgers Act 1992).
In preparing an EDP, Natural England must have regard to the development plan for the development area, the current environmental improvement plan, and any Environment Act strategies. The EDP must be consulted on and then sent to the Secretary of State.
When will Natural England make an EDP and when might we see the first EDPs?
Natural England will prepare an EDP either:
- on its own initiative; or
- at the request of the Secretary of State.
Although there are no set timescales in the Bill, the Government wants to get EDPs in place fast, and they have made clear that they want to see the first EDPs prepared alongside the Bill and be operational for developers to use shortly after Royal Assent. We could therefore see the first draft EDPs come through in the next few months.
When will an EDP come into effect?
The Secretary of State will only make the EDP if it passes the overall improvement test. This is passed if 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".
It will be interesting to see whether this wording is strengthened at all as the Bill make its way through Parliament.
How long will EDPs be in place for?
The EDPs will set out a start and end date, but they cannot be in place for longer than 10 years.
Can you challenge an EDP?
Yes – EDPs are judicially reviewable. The six-week challenge period applies.
Could Natural England acquire land to implement conservation measures?
Yes. The Bill provides the power for Natural England to compulsorily acquire land (subject to authorisation by the Secretary of State) if the land is required for purposes connected with a conservation measure set out in an EDP.
What if the conservation measures in the EDP are not working in practice?
Natural England must publish reports at least twice over the period of the EDP to demonstrate how the EDP is progressing. EDPs can include back-up measures that can be deployed if monitoring shows that the environmental outcomes aren’t being achieved through the initial conservation measures.
Nature Restoration Levy
The second tool introduced is a new Nature Restoration Levy. The bill sets out a mechanism by which developers can choose to pay the nature restoration levy - which will go into the Nature Restoration Fund - in relation to a development to which an EDP applies. If the levy is paid, certain environmental obligations are considered to be discharged.
The developer therefore has two options when carrying out development to which an EDP applies:
- Option 1: pay the nature restoration levy and the usual relevant restrictions in the Habitats Regulations 2017, the Wildlife and Countryside Act 1981 or the Protection of Badgers Act 1992 will be disregarded; or
- Option 2: not pay the restoration levy and continue to comply with the current restrictions.
However, if any specific EDP states that the payment of the levy is mandatory (which Natural England will have the power to make happen under the Bill), then the developer has no option and must proceed with Option 1.
How much will the levy cost?
The relevant EDPs will set out exactly how much payment of the levy will cost through charging schedules. The cost will vary depending on the nature and size of the development, with the charging schedules bespoke to each EDP.
Further regulations will be made by the Secretary of State which will detail how the rates are to be set. In making these regulations, viability must be considered - the aim must be to ensure that the overall purpose of the levy is to ensure that costs incurred in maintaining or improving the conservation status of environmental features can be funded by developers in a way that does not make development economically unviable.
When considering the rates in the charging schedule in the course of preparing an EDP, Natural England must have regard to:
- the actual and expected costs of the conservation measures relating to the environmental impact of development on the environmental feature to which the charging schedule relates;
- matters specified in regulations relating to the economic viability of development; and
- other actual or expected sources of funding for those conservation measures.
What environmental obligations are discharged if the levy is paid?
Schedule 4 of the Bill set out exactly what environmental obligations are considered to be discharged in relation to specific protected features or species. We have summarised these in the table below.
| Environmental Feature in EDP | Environmental Obligations Discharged if Levy Paid |
| Protected feature of a European Site or Ramsar Site | The environmental impact of the development on the protected feature is to be disregarded for the purposes of Part 6 of the Habitats Regulations 2017 (which requires an appropriate assessment to be carried out if a development is considered likely to have a significant effect on a protect habitats site). |
| Protected feature of an SSSI | Natural England’s consent is required for any development on an SSSI. If the levy is paid, then the environmental impact of the development on the protected feature is disregarded for the purposes of a determination by Natural England on whether to give such consent. |
| Species listed in Schedule 2, 4, or 5 of the Habitats Regulations 2017 | A licence under regulation 55(1) of the Habitats Regulations 2017 is to be treated as having been granted by Natural England (which may be required for certain activities relating to plants and animals listed in those schedules). |
| Species protected by Part 1 of the Wildlife and Countryside Act | A licence under section 16(3)(j) of the Wildlife and Countryside Act 1981 is to be treated as having been granted by Natural England (which exempts the licence holder from criminal liability for disturbing or harming a wild animal if it is in the overriding public interest) |
| Badgers | A licence under section 10 of the Protection of Badgers Act 1992 is to be treated as having been granted by Natural England (which allows interference with badgers setts in certain circumstances). |
By paying the levy, developers will also no longer need to undertake an Appropriate Assessment or take any other actions themselves for issues covered in the EDP. It will be for Natural England to deliver the necessary measures to secure environmental improvement.
Does paying the levy mean you don’t have to comply with the biodiversity net gain obligations?
No. The Bill does not propose to remove or amend the existing biodiversity net gain obligations, even where the levy is paid.
Can the levy only be paid where an EDP is in place?
Yes. The new route in discharging environmental obligations through payment of the levy into the Nature Restoration Fund can only be used where an EDP is in place.
Are the provisions aimed at unblocking developments held up by the nutrient neutrality issues?
Yes – the Government have clarified that EDPs will mainly be deployed to address issues like nutrient neutrality across different types of development (though that is not their sole purpose, and this section of the Bill forms part of the Government’s overall approach to removing barriers to development and housing growth). The Bill’s Explanatory Notes include a worked example of how this may work in practice, which we have replicated below:
A Practical Example
An EDP is in place which covers the following:
The EDP must set out sufficient conservation measures to address the nutrient pollution from the expected development and ensure that the environmental feature (the watercourse) is in a better condition than it would have been in the scenario where neither the development nor the measures in the EDP went ahead.
The EDP therefore includes the following conservation measures:
The EDP will also set out:
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Resources
The Government has published the following helpful resources and blog posts:
