Published: 20th February 2025

Background

Government has invited comments on proposals to reform land use planning processes in England, in a “Working Paper on Planning Reform and Nature Recovery” (see: https://www.gov.uk/government/publications/planning-reform-working-paper-development-and-nature-recovery). The paper sets out proposals for substantial changes to the way that species are considered in planning. ARC has reviewed the paper and submitted the response below, as well as commenting on responses being developed by our partners such as Wildlife and Countryside Link.

ARC response submitted 19 February 2025

Introduction

A central tenet of the working paper is the proposal provide a simplified system for developers to discharge their environmental responsibilities.  While details need to be developed, the concept is that payment is made to a single, central fund, administered by a delivery body. The rationale is based around a combination of a more rapid and certain outcome for developers, while delivering a greater benefit for biodiversity through a strategic application of funding. The proposals suggest that this would be achieved through changes to existing environmental legislation.   

While recognising the commitments made by Government to avoiding any regression in the Environmental legislation, and clear ambitions of supporting nature recovery, we were severely disheartened to see the recent repeat of some hostile, inaccurate and unhelpful rhetoric that sought to define nature as a ‘blocker to development’.  However, we do feel there are aspects of the implementation of regulation that could be improved – both through provision of more resources and through providing a clearer outcome focus.  We therefore welcome the offer to engage with Government and its agencies in looking to develop a constructive dialogue towards solutions that can provide better outcomes for wildlife alongside the effective implementation of the growth agenda.

Environmental legislation

There have been calls for a number of years to achieve an effective consolidation of wildlife protection legislation, which has through progress amendment become increasingly difficult to access. However, such consolidation should avoid any changes that weaken either the integrity or the substance of the legislation that has proved necessary to reduce the rate of decline of habitats and species and to provide a legislative framework to comply with our international obligations.  The commitment to ‘non-regression’ is welcomed.

However, the proposal as set out does not give sufficient reassurance around:

• Maintaining the integrity of the Habitats Regulations, other associated species conservation legislation and compliance with Environmental Damage Regulations
• Its fit to the Environmental Principles, as set out in the Environment Act 2021
• Ensuring that the mitigation hierarchy is respected
• Clarity around the application of a ‘strategic approach’ to licensing that avoids consideration of species or habitats, or the application of methods, to which is not suited
• The development of monitoring and survey programmes that ensure adequate assessments of impacts as part of the planning process, and for demonstrating net gain
• Clarity around the proposed scale and expectation of the Nature Restoration Fund and the level to which it is anticipated that it should go beyond mitigating impacts and towards contribution to nature restoration.
• Clarity around any implications for the Environmental Improvement Plan.

Alternative approaches

We think there are alternatives for improving the planning regime to those set out in the Working Paper, which are more evidence-based and likely to be successful, in comparison with the highly uncertain approach proposed. In summary, we believe that Government should (a) rectify the existing fragilities in the planning infrastructure, notably regulator resources and skills, policy and guidance; (b) introduce some amendments to make certain regulatory processes more efficient; (c) engage further with the construction industry to make it routine practice for early engagement on environmental impacts, and to address systemic issues in land purchase and construction; (d) ensure greater investment in monitoring the status of reptiles and amphibians, and in setting goals for nature recovery more widely. Any changes must be made with a clear-eyed view toward improving outcomes for the environment. As a simple example of (b), we suggest that great crested newt Low Impact Class Licensing is a much under-used approach, which – with some changes to its implementation – generate a substantial regulatory improvement for developments with minimal effects on new populations.

General comments on government nature recovery and regulatory initiatives

We would like to see Government being more effective in the timely and sound design and operation of new regulatory initiatives on the environment. Examples of initiatives where we feel predictable design or operation problems have impacted on the effectiveness and coherence of nature conservation actions include Biodiversity Net Gain, Local Nature Recovery Strategies and Species Conservation Strategies. Moreover, we note that Government has repeatedly called for reform to planning and species legislation over the last two decades, often accompanied by similar rhetoric around growth being blocked by nature. Save for a few initiatives, there has been little practical effort to address the underlying structural issues, such as local planning authority capacity, or production of guidance. We also note that there is a tendency for new initiatives to “crowd out” existing ones, as we have seen following the introduction of great crested newt District Level Licensing; in this case, it has been notable that Natural England has side-lined other important regulatory issues for newts whilst it focuses on District Level Licensing. Any new initiatives such as those outlined in the Working Paper should, we contend, (a) pay careful attention to design and operation by consulting widely and addressing the responses, and (b) simultaneously address underlying infrastructural shortcomings, (c) ensure that any new initiatives do not undermine the operation of existing regulation and conservation practice.

Response to questions in working paper

1. Do you consider this approach would be likely to provide tangible improvements to the developer experience while supporting nature recovery?

No.

The paper indicates areas where processes could be accelerated, and a simplified mechanism for addressing environmental impacts. However, it lacks clarity as to exactly what issues it seeks to address and around the way in which the proposal would work.

Currently, ecological survey and environmental assessment provide an understanding of the nature and scale of impacts; these will differ between developments.  It is unclear how these impacts will be assessed for the range of environmental considerations or how these will be considered in the planning process.  This risks a disconnect between the developer and their environmental responsibilities, risking a perception of neglect of environmental duties on the one hand, or a concern about an expectation to provide a disproportionate contribution for offsetting harm, on the other.  This may also generate uncertainties around legislative compliance and the possibility that some additional ecological consideration not covered by the strategic licensing might still arise at the 11^th hour.

We believe that there is scope for improving the regulatory system and that having improved environmental data available ‘upfront’ will both improve and facilitate decision making. 

2. Which environmental obligations do you feel are most suited to this proposed model, and at what geographic scale?

The mechanisms within existing legislation aim to ensure developments are consented only if they will not have an adverse effect on the integrity of a protected sites and/or protected, species except for where there are imperative reasons of overriding public interest. These objectives need to be reflected in any new proposals and be upheld to prevent biodiversity loss. Only those environmental obligations for which these objectives can be met should be considered.

As we understand the model is meant to work, we feel that this could apply to a limited number of circumstances.  These may include mitigating environmental impacts at larger scales, such as those relating to water quality, air quality or landscape scale protected sites.  These must address the timing of the implementation of mitigation/ compensation measures relative to the onset of impacts, with the expectation that these would be in place before any damage is caused. Delivery Plans should include defined timelines and identify the measurable gains so that these can be monitored.

Strategic licensing for great crested newts (via the Natural England led District Level Licensing and the NatureSpace District Licensing schemes) has demonstrated that there are circumstances in which a strategic approach can be applied to species.  The ecology of great crested newts, together with the applicability of a simple survey technique, has meant that there can be some confidence in determining where the species occurs and the likelihood of success of any mitigation/ compensation mechanism. This is facilitated by a focus on a single species. There are differences between these two schemes which are worth considering when assessing governance, transparency, long-term management and funding. Whilst one scheme has been funded through Government funding (reportedly around £7M, ultimately met by tax payers), the other - including the ‘pump priming for habitat creation’ - has been entirely supported through non-Governmental sources.

The development of Species Conservation Strategy pilot projects for dormice, water voles and widespread reptile species has further highlighted the different needs of different species; and in particular demonstrated the greater difficulties in surveying and in predicting the likely occurrence of the species compared to great crested newts. For other species, or groups of species such as the bats, such approaches are even harder to apply.  To this end, we advocate that site-specific surveys will be needed and that Strategic Delivery Plans should not replace project level assessments.

We concur that improvements could be made through having a strategic vision for nature conservation.  We advocate that the application of the principles underpinning Favourable Conservation Status can provide clarity around conservation objectives at appropriate scales and provide a basis for assessing impacts.  Improved licensing processes linked to training could ensure the availability of ecological assessors that could feed more rapidly into the planning system.  A more streamlined planning process should be developed for enabling the creation of compensation/ mitigation features which would reduce delays and costs.

Clear criteria, supported by further research, should be developed to allow the assessment of the feasibility of any strategic approaches; this may identify areas, e.g. through the licensing process or improving data to help to direct survey effort  (for example the Wildlife Assessment Check).

3. How if at all could the process of developing a Delivery Plan be improved to ensure confidence that they will deliver the necessary outcomes for nature?

There needs to be confidence that losses to biodiversity are fully compensated; this needs to be evidenced by having clarity around the status of species and habitats both before and after the impacts of development.  The loss of site-specific surveys is therefore a concern.  However, we feel that the development of clear criteria to define and describe Favourable Conservation Status can be helpful in creating confidence in defining outcomes. These definitions would provide clarity around range, distribution, population levels and extent and quality of habitats, and would also provide a consistent framework for assessing the cumulative impacts (positive and negative) arising from different conservation measures and how they are impacted by different threats and pressures.

Confidence will be improved if the success of any approach can be demonstrated. This indicates the need for effective pilots and he development of clear ‘success criteria’ that relate to all the features that might be impacted.  Underpinning these assessments is the availability of effective monitoring and a transparency around the reporting of outcomes.

Clear Governance arrangements need to be in place, with clear lines of accountability. We advocate that there should be a separation of the regulatory and delivery roles. This will ensure setting of standards and reduce the risk of ‘perverse incentives’ for example the need to encourage development in order to fund mitigation, and to ensure that there is a level playing field for those delivering these schemes. There should be a clear and consistent framework for the Delivery Plans. We advocate that there must be effective consultation with expert bodies and local stakeholders. This is needed for two key reasons: firstly, technical expertise lies outside state bodies, such as with NGOs and academic institutions, and secondly, consultation should ensure wider social support and confidence.

There needs to be clarity at the outset about what is and what isn’t included – and notably there need to be specific recognition of the importance of irreplaceable habitats and the value of biodiversity in proximity to people.  Ensuring a ‘join up’ across different initiatives, notably with Local Nature Recovery Plans, would provide additional confidence that these mechanisms are supported and are working to common objectives.

4. Are there any additional specific safeguards you would want to see to ensure environmental protections and / or a streamlined developer experience?

The current political narrative around nature being a ‘blocker’ to development has not provided confidence that biodiversity is being considered as a priority. A more overt recognition of the importance of biodiversity, and of the social and economic benefits that it provides[1], would engender more confidence and a stronger likelihood of effective collaboration. We see ‘codesign’ of such schemes as an effective means of building confidence and ensuring necessary safeguards are recognised and implemented.

Existing conservation legislation has demonstrably been shown to be effective and not to be an impediment to growth[2]. The legislation is ‘outcome focused’ and offers flexibility to balance nature protection with development. Therefore, we would advocate keeping changes to the Habitats Regulations, and any associated changes to the Wildlife & Countryside Act and other relevant legislation, minimal.  We would, however, consider that simple consolidation legislation[3] may offer greater clarity.

A fuller implementation of the Biodiversity Duty (Section 40 NERC Act 2006) and provision of greater clarity on how this should apply across public bodies to achieving biodiversity enhancement would be beneficial.  Having this embedded across the public services would provide greater consistency, confidence and conservation outcomes.  There should be more investment in the regulatory system rather than less – notably there needs to be greater ecological expertise and capacity within planning, as indicated by a recent government report[4].

Better data will provide a better understanding of biodiversity that will provide greater confidence that impacts are understood, and more certainty to developers, regulators and wider society.  We advocate that there should be more investment in local records centres and also a much greater support for and engagement of national survey schemes to increase confidence and provide cost effective surveys. These data need to be available at the planning stage and impacts need to be avoided or effectively compensated. However, without site specific survey, it will be difficult to know what is present and hence what impacts might occur. The biodiversity interest may go beyond what might be considered via assessing a few ‘typical species’, for example records of rare plants or invertebrate may be absent and significant sites maybe missed.  There needs to be reassurance that the full range of biodiversity interests will be considered  

An explicit recognition of the importance of biodiversity in proximity to people would build in safeguards to ensure local consideration of biodiversity needs. This would give confidence that biodiversity is being considered in planning, and that distribution of habitats and species might be maintained.

5. Do you support a continued role for third parties such as habitat banks and land managers in supplying nature services as part of Delivery Plans?

Yes.

We are keen to see the engagement of non-Governmental bodies in delivering nature conservation outcomes. We have seen that private sector and ‘not for profit’ organisations have been involved in both strategic licensing for great crested newts (NatureSpace partnership) and nutrient neutrality.  Funding for private and civil society organisations can help ensure high standard, and investment in long-term outcomes and increasingly provide essential funding to maintain the sustainability of such organisations.

Over and above this, it is questionable whether Government will be able, or should be expected, to oversee effective mitigation for impacts of development, or to fully fund and service nature recovery.   A well as issues around capacity, there are considerable additional complexities around land ownership and the application of covenants or the necessary mechanisms for ensuring long term conservation gain.  Engagement of non-Governmental organisations should also help ensure compliance outside of the uncertainties of political prioritisation.

However, we believe there is a clear role for Government in defining the governance structures and in defining and policing the roles and standards expected of delivery bodies.

In considering how these might be funded, there needs to be greater clarity around the proposals for the Nature Restoration Fund and in particular the scope of what it is intended to fund or how the priorities were determined.  We would be concerned if this ended up as a large fund to fund ‘shovel-ready projects’ with inadequate provision for supporting longer term investment in biodiversity conservation.

6. How could we use new tools like Environmental Outcomes Reports to support this model?

The Working Paper is unclear about the proposed scope or content of Environmental Outcomes Reports. Conceptually these could be valuable documents, defining a range of conservation objectives and defining target levels or defining local Favourable Conservation Status for priority habitats and species.  These could be used to set common goals across a range of initiatives, including agri-environment, designated sites and Local Nature Recovery Strategies – integration with such initiatives would therefore be essential.  Having such consistent standards would therefore provide a valuable tool for regulation and allow a clear understanding around the expectations for delivery by different measures (e.g. strategic licensing).

The production of such a report would require good data and would benefit for the effective integration of species surveys (including data from civil society schemes) and habitat information. These may in turn help encourage the design of effective remote sensing programmes that generate ‘optimal’ environmental data for assessing habitat extent and condition and supporting species distribution modelling.  Such outputs would benefit from good partnership between Government, local environmental record centres and environmental NGOs.

The effective use of such reports, perhaps aligned with LNRSs or land use frameworks, could encourage effective planning that reduces the need for mitigating development impacts.

7. Are there any other matters that you think we should be aware of if these proposals were to be taken forward, in particular to ensure they provide benefits for development and the environment as early as possible?

The Working Paper indicates that developers will be expected to fund nature restoration.  Current mitigation, whether via BNG or via species mitigation, is designed to offset losses. The relatively small percentage uplifts required in practice are likely to only to provide a ‘buffer’ for offsetting impacts rather than achieving a demonstrable gain.  While we are supportive of the general ambition expressed, there needs to be clarity as to the expectations for of this fund and the degree to which developer contributions are meant to fund restoration beyond the impacts they are causing.

As such the Nature Restoration Fund need to have more clearly defined parameters to work with.  This is especially so as there is a suggestion that Government may wish to ‘pump prime’ compensation via upfront payments.  There needs to be considerable transparency here and indeed clarity as to how this might work, and especially if there is any ambition that others (e.g. habitat banks or privately funded mitigation/ compensation programmes) are looking to fund these independently of Government funding. We would like to see a clear commitment to ongoing state support for nature recovery, both financial and institutional, and a prevention of developer funding undermining this role. The critical role of the public sector in nature recovery has been highlighted in recent reports, e.g. https://naturerecovery.ox.ac.uk/wp-content/uploads/2024/12/WT-Leading-from-the-front-Accessible.pdf.