Planning and Infrastructure Bill: changes we need to protect freshwater wildlife
22nd April 2025
At Freshwater Habitats Trust, we have a unique perspective on the Planning and Infrastructure Bill, currently progressing through Parliament. As an organisation with more than 35 years’ experience of protecting freshwater biodiversity, we are deeply concerned about the erosion of environmental protections which Part III of the Bill could usher in. However, as pioneers of successful ‘strategic licensing’ for Great Crested Newts, we can see the potential positives in these proposals, if safeguards are strengthened.
This Government’s hostile language towards nature has been deeply unhelpful, with ministers and the Prime Minister himself often perpetuating a false narrative that human development and protection of the natural world are conflicting goals.
Setting language aside, we don’t think the Government’s ‘development and nature recovery’ proposal (below) – is an inherently bad one. However, like most of our colleagues in the environmental sector, we firmly believe that the Planning and Infrastructure Bill, as introduced, risks dangerously undermining the protections currently afforded to England’s threatened habitats and species.
Through the Planning and Infrastructure Bill, the Government aims to change the way that developers address their impacts on legally protected sites and species, moving from a model based on site-level assessment and local mitigation towards one operating at a larger scale, where developers pay into a central pot that is used to fund restoration, without needing to undertake their own onsite assessment in relation to these impacts.
The Government argues that this change would represent a win-win for developers and nature, by both reducing delays to development and funding more, joined up, ‘strategic’ nature restoration actions. Many stakeholders are sceptical that either outcome will be achieved by the proposals, as they stand.
That’s why we recently signed Wildlife and Countryside Link’s open letter, along with 32 other environmental charities, expressing the shared concerns of the sector, and suggesting a way forward.
Here are our own concerns about the key problem areas in the Bill, in advance of Committee Stage in the House of Commons. Thanks to advocacy from the Wildlife Trusts, Wildlife and Countryside Link and others, several useful amendments have already been tabled, which we refer to below. A list of these amendments is available here.
For some environmental impacts, we think strategic compensation can work – but only with strict safeguards against misuse.
For seven years, the Newt Conservation Partnership (made up of staff from Freshwater Habitats Trust and Amphibian and Reptile Conservation) has delivered a ‘newt offsetting’ scheme known as District Licensing across 68 of England’s Local Planning Authorities, covering about 20% of England. Our experience working on District Licensing has shown us that a more strategic approach to mitigating development impacts can work well for nature. However, for the proposals in the Planning and Infrastructure Bill to deliver the promised ‘win-wins’, several elements of the Bill will need to be strengthened, to add the following safeguards.
- A Great Crested Newt - each has a unique pattern.
Safeguard 1 – the mitigation hierarchy
The ‘mitigation hierarchy’ is a widely used principle, enshrined in various pieces of planning policy, which sets out a sequence for addressing the environmental impacts of development. According to the mitigation hierarchy, a developer should first try to avoid impacts altogether – for instance by rearranging the footprint of a development. Where complete avoidance isn’t possible, developers should minimise harm. Where harm occurs, the species should be restored on-site. And where restoration isn’t possible, as a last resort, developers should offset their impacts by restoring, for example, the same habitat, or a population of the same species, in a different location.
The Planning and Infrastructure Bill, as introduced, turns this principle on its head. The Bill requires an ‘Environmental Delivery Plan’ (EDP) to set out whether a feature can be protected on site. However, there is little or no incentive for a developer to avoid impacts. This is because, if the feature in question is included within an EDP, the developer will pay the same flat ‘Nature Restoration Levy’ regardless of whether they obliterate the entire thing, or make plans which don’t impact the feature in the slightest.
We’re not precious about the mitigation hierarchy. In fact, in many cases we think that on-site mitigation delivers worse outcomes for species than high-quality off-site offsetting. However, it is common sense that developers should be encouraged to avoid impacts if at all possible – and the Bill should do more to ensure this.
We strongly support Amendment 19, tabled by Ellie Chowns MP on this point, which would require a developer to take ‘reasonable steps to appropriately apply the mitigation hierarchy, including by seeking to avoid harm to any protected feature’.
Safeguard 2 - upfront evidence
If you want to address the impacts of development by offsite offsetting, you will need upfront evidence that compensation will work in principle, since in many cases, offsite compensation is ecologically inappropriate (see below).
Currently, an EDP could theoretically be developed with no prior evidence that offsite compensation would work for the environmental feature in question. Given the Government’s all-consuming drive to speed up housebuilding, there is good reason to be concerned that the need to take the time to establish this upfront evidence will be disregarded, unless it is mandated by the Bill.
The development of EDPs without robust upfront evidence would represent a significant erosion of environmental protections, compared with the current requirement to conduct site-level assessment for any development impacting a protected site or species.
The amendment proposed by Wildlife and Countryside Link – to ensure that EDPs can only be prepared where it can be demonstrated that ‘implementing conservation measures as part of an EDP could contribute to a significant environmental improvement in the conservation status of a protected feature’ – would help to ensure that upfront evidence is required.
Safeguard 3 – funding for monitoring
Alongside upfront evidence, successful offsetting requires ongoing monitoring. This ensures that measures are working, and enables delivery to be adapted if they aren’t.
At the moment, although reporting on EDP effectiveness is required by the Bill, monitoring is left out of clause 66, on ‘use of the Nature Restoration Levy’. This could leave Natural England unable to fund thorough monitoring, and thus unable to assess whether compensation measures are working properly. There is a long history of inadequate monitoring of mitigation projects, so this is a major concern.
The Bill should be amended to insert monitoring into clause 66.
Safeguard 4 – prioritising ecological viability over economic viability
At present, the Bill contains a sneaky caveat which could entirely undermine nature outcomes – pg. 93, line 40 (clause 62 – our emphasis in bold):
In making the regulations, the Secretary of State must aim to ensure that the overall purpose of the nature restoration levy is to ensure that costs incurred in maintaining or improving the conservation status of environmental features can be funded (wholly or partly) by developers in a way that does not make development economically unviable.
As other nature groups have pointed out, this is back-to-front. If development impacts are bad enough to make the cost of offsetting them ‘economically unviable’, then the development shouldn’t happen.
Amendment 27, tabled by Jenny Riddell-Carpenter MP, should be incorporated into the Bill to remove this prioritisation of developer viability entirely.
Safeguard 5 – aiming for significant improvement
Currently, the Bill contains an ‘overall improvement test’ which requires the Secretary of State (for Housing) to be happy that conservation measures set out in an EDP 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’.
A ‘likely outweighing’ is too weak, given that experience teaches us that conservation measures often fall short of their expected environmental benefits.
Instead, as put forward in Amendment 14, tabled by Gideon Amos MP, the overall improvement test should require conservation measures to ‘significantly outweigh’ damage caused by development.
Safeguard 6 – compensation ahead of impact
At present, there’s nothing in the Bill to ensure that compensation measures within EDPs are delivered quickly enough to prevent an overall decline in the status of an environmental feature. For many of our protected habitats and species, already in critical condition, such a decline could be irreparable.
We therefore support Amendment 3, tabled by Chris Hinchliff MP, which would ensure that timetables are published for conservation measures within EDPs, and that compensation for significant impacts is delivered in advance of harm from development.
For some environmental impacts, strategic compensation can’t work.
Provided the above safeguards are respected, the Planning and Infrastructure Bill’s proposals should be workable for some species and habitats. However, not all habitats can be feasibly recreated in a new location, and not all species can adapt to occupy a new home as an existing population is lost.
We support colleagues in species-focused organisations who are raising the alarm about inappropriate application of EDPs to species whose ecology is incompatible with offsite compensation – such as site-loyal bat species. The bodies tasked with developing EDPs should consult widely with independent expert organisations, and respect the evidence – even where it disqualifies a species from offsite compensation.
At Freshwater Habitats Trust, we are especially concerned that Irreplaceable Habitats could currently be bundled into EDPs. By their nature, Irreplaceable Habitats are wholly unsuitable for the kind of approach proposed in the Planning and Infrastructure Bill.
Lots of habitats are products of local geographic peculiarities, and can form only under very specific climatic, geological, or hydrological conditions. On top of this, some habitats take an extremely long time to reach their mature state. The obvious example is ancient woodland – but there are many other kinds of habitat which similarly only reach their full richness after tens or hundreds of years. In recognition of this ecological reality, the National Planning Policy Framework and Biodiversity Net Gain Regulations recognise ‘Irreplaceable Habitats’ as those which are very difficult to restore, create or replace once they’ve been destroyed.
Currently, lowland fen is the only freshwater habitat on the Irreplaceable Habitats list. There is a strong case for the designation of other freshwater habitats as Irreplaceable Habitats, including ice age ponds and ponds with floating vegetation mats.
We therefore strongly support Amendment 18, tabled by Ellie Chowns MP, which would prevent EDPs being applied to Irreplaceable Habitats. This must be accompanied by the publication of a full list of Irreplaceable Habitats, following consultation, as was promised by the last Government.
A critical moment for the Government’s nature legacy
The Planning and Infrastructure Bill’s proposals aren’t fundamentally flawed – but if the Bill isn’t significantly amended, it will pose a real threat to protected sites and species.
The Bill represents a substantial change to the way that development and nature will interact in the future. The decisions the government makes now will have a profound impact on its environmental legacy, in this critical decade for nature recovery. We ask government to carefully consider the concerns raised by us, and other environmental organisations, in strengthening the Planning and Infrastructure Bill’s nature protections.
How you can help
If you share our concerns about the Planning and Infrastructure Bill, you can write to your local MP, using our template letter.