The Planning and Infrastructure bill should go further

Why we need a better solution to the Bat Tunnel problem

Britain’s environmental regulations deliver the worst of both worlds. It’s bad enough that they have the side-effect of delaying crucial infrastructure projects with mountainous impact assessments and pointless requirements to build bat sheds and fish discos. The crazy thing is they don’t even protect nature very well. Many of Britain’s key environmental indicators are flashing red.

The Labour Government’s Planning and Infrastructure bill is, in part, a sincere attempt to fix this. The core idea is to scrap the specimen-by-specimen, site-by-site approach to protecting nature and replace it with one that addresses habitat loss at a higher, more strategic level. Instead of a housebuilder carrying out an environmental assessment for a given development and addressing its impacts on newts, bats, and river pollution directly, the housebuilder would refer to a high-level strategic assessment and mitigate likely impacts by paying into a Government-run Nature Restoration Fund.

This approach has been dubbed by anti-development campaigners as ‘cash to trash’. Yet, as the philosopher Homer (Simpson) once pointed out: money can be exchanged for goods and services. And when you are addressing threats to nature at a strategic level (rather than site-specific level), your money can stretch a lot further. Instead of spending £100m on a tunnel to protect a colony of around 300 bats, you could build 10,000 bat roosts, restore 1,000 km of hedgerows, and reforest hundreds of hectares of feeding habitat (and still have change leftover).

This is what the Planning and Infrastructure bill is trying to achieve and gets us close to. But, there is a big risk, that is, assuming the Government holds its nerve in the face of dozens of NGO-authored wrecking amendments. For this system to work, we need regulators like Natural England to put plans in place to eliminate red-tape and deliver more nature-bang-for-developer-buck. Until they carry out those strategic assessments and put those ‘environmental delivery plans’– EDPs, for short–in place we fall back on the old system. In short, the regulator needs to get its act together fast. Natural England’s culture needs to change dramatically. Their role must no longer be blocker, but enabler.

Yet, while there are clear issues with Natural England, they do not deserve all the blame for the bureaucratic mess we are in. As they have stated, on multiple occasions, they are merely there to enforce the law. And there is a risk that the law will, in some cases, make it hard to put EDPs in place. When that happens, we will be stuck with the same old system that forced HS2 to build a £100m bat tunnel, Hinkley Point C to install a fish disco, and held up a new town to be built on industrial wasteland to protect a rare jumping spider.

I mention that last case because it represents my biggest fear. Swanscombe Peninsula, I think it is fair to say, is probably not what the public have in mind when they think of protecting nature. Most of the site is post-industrial wasteland. Old cement works, landfills, and quarries. This is not virgin forest – this is a site heavily shaped by industrial activity. Some parts can be accessed for birdwatching, but most of the site is off-limits. There are no walking trails. You won’t find a visitor centre on arrival. In fact, few would want to visit because the nature the site contains isn’t visible to the untrained eye. There’s a rare jumping spider – though there is some dispute over whether it’s native to the site. And then there’s water beetles – many of which are only a few millimeters long.

Swanscombe Peninsula, or at least part of it, was to be the site of a new theme park–The London Resort–and Ebbsfleet New Town. The developers spent millions acquiring the land. They presumed, clearly incorrectly, that the industrial wasteland near the high speed rail link to London and Paris was the perfect location. Yet, when Natural England designated the site as being of ‘Special Scientific Interest’, they killed the theme park and dramatically curtailed the New Town project. Bizarrely, the 1,300 homes that were lost from the new town (essentially next to a train station) were in the part of the SSSI with the lowest biodiversity value.

To be fair to Natural England, the invertebrates on the site – jumping spiders and water beetles included – are genuinely rare. And the challenge for the new strategic approach to protecting nature is dealing with cases like this. If Natural England, no matter how hard they try, feel unable to put in place a plan that would have a positive (or even neutral) impact on the specific protected features impacted (e.g. rare invertebrates) by a development, then we fall back on the status quo. Development cannot proceed.

Let’s be clear. This state of affairs is not inevitable or necessary. It is a political choice. Politicians are choosing a system that will, on occasion, put protecting specific species and environmental features ahead of jobs, growth, and energy security. Few would argue that economic benefits should always come first over nature. And in some cases, nature and growth can go hand-in-hand. But, there will be cases, where the requirement to protect certain species on certain sites means lengthy delays, huge expenses, and in some cases, development blocked entirely.

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What Britain needs is a backstop that can be used in cases where EDPs cannot be put in place and following the Habitats Regulations will lead to perverse and disproportionate outcomes. This backstop should take the form of a National EDP.

In the exceptional cases where neither the new or old system will deliver a proportionate outcome and infrastructure of a critical national importance is threatened, developers would pay into a National EDP and the Habitats Regulations would be disapplied.

Payments into the National EDP, which would be tasked with delivering the Government’s legally-enshrined 25 Year Environmental Plan, would be set at a higher level than the standard Nature Restoration Levy payments for impacts covered by standard EDPs. The higher level of payments is to reflect that in such cases a merely neutral or mildly positive impact on nature is insufficient and instead a significant environmental improvement is required.

It should be stressed that this is for use in special circumstances. The National EDP backstop should not be available to every single type of development. Only developments, which are given the status of ‘Critical National Importance, should be covered. At the moment, this covers large-scale solar, wind, nuclear and energy transmission projects. There is a strong case, given the Government’s prior commitments, to expand this to also cover both New Towns and certain transport infrastructure, such as major roads listed in the Government’s Road Investment Strategy.

The decision to build bat tunnels and fish discos is a political decision so the power to use this backstop, in exceptional cases, should rest with the relevant Secretary of State. For new towns that would be Housing Secretary Angela Rayner, while for a nuclear power station that would be Energy Secretary Ed Miliband.

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The case for a backstop is not just about economic growth, energy security, or Net Zero. It is about democracy. Trust in politicians, and democratic politics, is at an all-time low. If politicians are unable to deliver on promises, whether that’s a clean power grid by 2030 or a new road connecting Essex and Kent, the problem will only get worse. Talking about the latter (the Lower Thames Crossing) former Home Secretary David Blunkett described today’s problem as “absolute disillusionment — not just with politics, but with the ability of government to deliver”.

Our proposed backstop would change that. Politicians would no longer be able to claim that they are powerless in the face of Natural England’s guidance. The power to deliver new roads, new power stations, and new towns would be back in the hands of elected politicians.