James Clark, partner in the Planning & Environment team at law firm Foot Anstey, examines the Planning & Infrastructure Bill’s proposals for Environmental Delivery Plans
In March, the government published the long-anticipated Planning & Infrastructure Bill, outlining its proposals for development and nature recovery. Ministers believe this will “facilitate a more strategic approach to the discharge of environmental obligations and result in improved environmental outcomes being delivered more efficiently”.
What are Environmental Delivery Plans?
Environmental Delivery Plans (EDPs) are designed to provide environmental mitigation more strategically, alleviating developers from the obligation to resolve challenging environmental issues, such as nutrient neutrality, on a site-by-site basis.
The responsibility for preparing EDPs will sit with Natural England, although an alternative delivery body can be appointed in the future. Once an EDP is in place, a developer can pay the Nature Restoration Levy (NRL) to Natural England instead of providing on-site mitigation.
An EDP can apply to land in England or waters adjacent to England. It must identify the protected feature of a protected site or species that the EDP will apply to, specify the development it applies to, the area where the development can be carried out and the maximum amount of development the EDP covers.
Importantly, the EDP must outline the conservation measures to be taken by (or on behalf of) Natural England to address the environmental impact of development on the specified protected feature and contribute to the overall improvement in its conservation status.
Similar to the Community Infrastructure Levy (CIL), the EDP will be accompanied by a charging schedule, setting out the rate(s) applicable for each kind of development the EDP covers.
An EDP can remain in place for up to 10 years, and Natural England must report on the EDP halfway through and at the end of its lifetime. The reports must contain various details, including the remaining development capacity of the EDP.
Developers are likely to require more frequent updates on the capacity of the EDP to give confidence that the environmental obligations can be met by paying the NRL rather than through on-site mitigation.
Implementation
Natural England must give notice if it decides to prepare an EDP, notification is followed by a period of consultation before the EDP is submitted to the secretary of state for approval. It is currently unclear how long the preparation, consultation and approval of an EDP is likely to take.
During this transitional period, developers may find it challenging to plan their schemes around EDPs due to uncertain timescales. Initially, developers may not know what types of development or protected features/species an EDP will apply to until Natural England consults on the draft EDP.
Paying the Nature Restoration Levy
A developer must first request to pay the NRL for a development the EDP applies to. If Natural England accepts the request, the developer is then committed to paying the NRL.
Regulations will be published detailing the process of paying the NRL, how liability is assumed and withdrawn. The proposals appear to follow the approach taken in the CIL regulations.
The regulations may also permit Natural England to rescind its acceptance of a developer’s request to pay the NRL. More certainty on the circumstances in which a request can be revoked will be required for developers to have confidence in EDPs.
Potential challenges
In principle, these changes will be welcomed by developers and will present opportunities for private, commercial and charitable landowners to promote their land as suitable sites for conservation measures funded by the NRL.
However, concerns remain regarding the transition phase prior to EDPs coming into force and how they will work in practice.
The levies set by Natural England will also be critical to the success of EDPs; developers will otherwise prefer to provide on-site mitigation if doing so is cheaper than paying the NRL.
It will take time before EDPs are in place across England. It remains to be seen how Natural England will prioritise the preparation of EDPs and whether it will have the resources to bring them forward at the pace and scale needed to address the environmental constraints holding back development.
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