Project Nutcracker: Avoiding more kittiwake hotels and bat sheds

In this Nutcracker I explain why the reforms to the Habitats regime proposed in the Planning and Infrastructure Bill will not work for major infrastructure projects. I propose simple legislative amendments which, combined with new guidance to nature regulators, would lead to a fairer regime for developers and better outcomes for nature. There is an urgent need to seize the opportunity to implement these changes via the Bill.

We still have a problem, so let's fix it

I have written previously about why the Habitat Regulations[1] are such a challenge for developers and a pro-growth Government: [Bat Shed Crazy]. I also discussed the Government's Working Paper on Nature Recovery, where I guessed that the Government would feel limited in what it could achieve in the Planning and Infrastructure Bill to address Habitats [Wishful Thinking].

Since I published these articles, two things have happened: (i) the Government has brought out details of how strategic compensation might work for offshore wind projects; and (ii) The Planning and Infrastructure Bill (or "Bill") has put forward "environmental delivery plans" ("EDPs") as a way to deliver "strategic compensation" onshore.

As I explain, the two approaches are very different. The latter is much more radical than the former. Neither, however, offers a regime that will avoid the need for expensive compensation packages for one-off projects (like the HS2's bat shed), which simply are not good value for developers or nature. This is something that environmental NGOs are now recognising as much as developers.

I have therefore given more thought to how we navigate the Habitats regime to achieve what Government, developers and green groups all broadly want.

Some limited amendments to the Habitats regime are required, but much is best achieved via new guidance to the statutory nature conservation bodies ("SNCBs") clarifying the way in which key principles of the existing regime should (and should not) be applied. This doesn't sound dramatic, but that's really the point. Often, and certainly in this case, the best changes are the simplest. The package of measures I propose would be highly effective in creating a more proportionate approach for all major projects.

The Corry Review of DEFRA's regulatory functions could not be better timed to invite the sort of changes I am suggesting. My hope is we can get the provisions we need into the Bill. Government can work on the guidance needed in parallel, and should do so with input from developers.

Strategic compensation for offshore wind - sticking with the rules

In January, the Government brought out interim guidance on how strategic compensation and the related "Marine Recovery Fund" is intended to work for the offshore wind industry. The genesis of this attempt to fix the Habitats problem (for the offshore wind industry only) was the Energy Act 2023. That Act empowered the Secretary of State to make apparently sweeping changes to the Habitat regime via secondary legislation. That legislation has yet to be published.  However, the interim guidance gives us some insight into how far it may go. As I predicted, it is not particularly helpful.

Essentially, it applies the existing rules but says that if the Government happens to have created a strategic compensation project which deals with exactly the Habitats problem that the applicant for a particular offshore wind project is coming up against, then that applicant can pay some money into a fund, rather than having to put forward bespoke compensation for its own project. In theory, this is efficient and will lead to economies of scale (eg one big artificial nesting site for kittiwakes to cover multiple projects rather than each project having to build its own).

In practice, however, it will be of no use to most of the offshore wind schemes in the pipeline. The guidance makes clear that unless such a scheme exists at the time of the application, and is confirmed by the SNCBs as adequate to address impacts at the time they will occur, it's of no use. The developer must instead propose its own bespoke compensation under the Habitats regime, as they do currently. Given that it could take years for Government to design and build such compensation schemes, this is going to be of limited use for the current crop of projects. By the time such strategic compensation is in place, there are likely to be relatively few further offshore wind projects to be consented around the UK.

In addition, two key points:

1. Firstly, there simply is not enough like-for-like compensation that could be created to offset the impacts on particular seabirds caused by the proposed 43-50GW of offshore wind that the Government aspires to by 2030. There is therefore an urgent need to take a less restrictive interpretation of what can constitute "compensation" under the Habitats regime.

2. Secondly, the current requirement for like-for-like compensation is leading to vast amounts of money being paid to help breed relatively small numbers of kittiwakes (a type of seagull). The £300-400m that developers of wind farms in the North Sea are collectively having to commit to compensation measures including artificial nesting structures for these birds would be much better used by the RSPB to implement a wider seabirds strategy in the UK.       

Strategic compensation onshore - breaking the rules

The scheme the Government proposes to deal with Habitats problems onshore is very different. I was quite wrong in my prediction on this one. I assumed that it would adopt the same sort of approach as offshore wind ie sticking within the existing rules but just applying the principles of the regime to collective compensation schemes. I expected that like the Energy Act 2023 it might defer the detail of how it would work for secondary legislation.

The provisions set out in the Planning and Infrastructure Bill are, in fact, much more detailed and radical than this. In big picture terms, the Bill appears to set up a "pay and forget" model. Provided Natural England has plans for an EDP covering a particular impact (eg nutrient pollution of a river) then developers coming forward with proposals in the relevant area no longer have to carry out Habitats assessments or obtain licences in relation to that impact. They can pay into the fund covering that EDP and are deemed to have the necessary Habitats and species licences they need, subject to generic conditions. It does not appear to matter whether the EDP has been implemented, as long as the plan exists and has been adopted by the Secretary of State after the necessary consultation. All of this breaks current regulatory moulds.

There are lots of questions being asked about how this will work in practice. This kind of pro-active role, delivering compensation projects, will be new for Natural England. They'll need the right staff to be recruited to do it (those used to developing projects). There will also need to be lots of forward funding by Government before developer payments start coming onstream. It will clearly take some time to get EDPs adopted from today's standing start.

The purpose of this article is not, however, to critique the Bill's approach to strategic compensation as it might apply to housing projects (its most obvious target), but rather: (i) to suggest why we need a different approach for one-off energy and infrastructure projects and (ii) to offer a view on what that approach might be.

One-off energy and infrastructure projects - still face a habitats problem

What I was right about in my previous articles was that the Bill's approach is most obviously applicable to the nutrient neutrality problem currently blocking much housing development: a single (known) impact in a given area (nutrient pollution of a particular water basin) contributed to by multiple developers. You can see the sense in developers clubbing together to give money to a Government entity to provide a compensation solution, which is funded by the relevant developers in the affected area[1].

It is much more difficult to see how the whole concept of strategic compensation works where a single project is brought forward which is creating a Habitats problem. By the time a developer comes along with a project and identifies a Habitats problem, there is unlikely to be sufficient time for Natural England to put in place an EDP before that developer wishes to make its consent application. Developers would therefore need to twin-track the EDP process with going through the traditional Habitats assessment process themselves (including identifying their own compensation).  This is unlikely to be seen as attractive or worthwhile to most developers.

In addition, in such cases there is no economy of scale to be had by Natural England putting in place an EDP. Where a single developer would be the sole beneficiary, that developer would presumably have to bear the whole cost.

So, while the Bill does refer to EDPs being capable of being put in place for nationally significant infrastructure projects under the Planning Act 2008, I don't really see that working. Nor would it for major projects promoted under other regimes.

What we therefore need for such projects is to make the existing Habitats regime more workable and proportionate, in line with the spirit of the Corry Review's recommendations.

My proposed fixes would benefit all projects

There are three potential stages of Habitats assessment. Stages 1, 2 and 3 act as a funnel through which applications proceed, stopping at a given stage if the relevant tests are satisfied. Therefore, the more fixes we implement for the earlier stages, the less projects will need to go through the subsequent stages at all.

The overall objective of the changes I propose is to find a reasonable and proportionate way to:

1. Reduce the number of projects which are "screened in" at Stage 1, and therefore need to undergo a full (Stage 2) assessment;
2. Reduce the number of projects deemed to fail Stage 2 assessment on grounds that they risk causing an "adverse effect on integrity" of a protected site;
3. For projects which are held to be at risk of causing an adverse effect on integrity (and therefore must undergo Stage 3 assessment) ensure that the level and type of compensation measures required are reasonable and proportionate. This will deliver the best value for nature using the developer's money; and
4. For consented projects which have undergone Habitats assessment, or were screened out from having to carry it out, ensure there is no risk of having to carry out such an assessment subsequently (during the construction or operational phase). It is unreasonable for developers to have to carry this risk forward, and there is a danger that this begins to undermine investor confidence.

I elaborate in the rest of this article on the problems which need to be addressed via legislation and guidance to achieve these objectives.

I am suggesting this packages of measures primarily because we need something that works for one-off energy and infrastructure projects. However, these changes would apply to all development, including housing. Given that EDPs might take longer and be more difficult and costly to get in place than Government anticipates, I hope my proposals will be supported equally by those whose primary focus is expediting housing.

Why some habitats problems require legislation

There are three key cases which have made the Habitats regime much more unwieldy.  These are the EU's People Over Wind & Sweetman v Coillte Teoranta case (EU:C:2018:244) of 2018; the EU's Sweetman (No 1) case; and the CG Fry case currently awaiting determination by our Supreme Court.

Under the European Union (Withdrawal) Act 2018, our Court of Appeal and Supreme Court may deviate from EU case law, but lower courts may not. In any case, in practice the Court of Appeal and Supreme Court have been reluctant to deviate from the EU's interpretation of European-derived law (such as the Habitat Regulations). In order to over-ride the unhelpful effects of these three cases, the Government therefore needs to legislate. The only constraint on the Government legislating in this way would be considerations around whether this would constitute environmental 'regression' of the current law or breach the post-Brexit Trade and Co-operation Agreement ("TCA"). I consider these issues later, but first I explain the impact of these three cases.

People Over Wind: more cases pushed into full assessment

The People Over Wind case held that mitigation measures cannot be taken into account at the screening stage (Stage 1) of the Habitats process. This leads to much philosophical debate between the SNCBS and developers about what counts as "mitigation" as opposed to merely an integral part of a project's design, but the upshot is that far more projects now have to undertake full (Stage 2) Habitats assessment than prior to this 2017 case. This is because if you discount measures the developer intends to use to mitigate the impacts of their project then of course more will be deemed to be at risk of giving rise to a "likely significant effect" (the gateway test for having to do Stage 2 assessment). Stepping back, it is surely a nonsense not to allow mitigation measures to be taken into account at the screening stage. It means the screening test is being applied against a wholly artificial version of the project.

This might matter less if, once in Stage 2 (full) assessment, the SNCBs didn't take such a precautionary approach, ruling that even de minimis effects count as having an "adverse effect on integrity". As it is, the People Over Wind case combined with SNCB's approach at Stage 2 leaves developer whose projects will cause only de minimis impacts having to go through Stage 3 assessment and find compensation. By reversing People Over Wind via legislation, we would stop this cascade effect.

Prior to People Over Wind, UK judges were very clear in holding that mitigation should be taken into account at the screening stage. Sullivan J held in R (Hart DC) v SSCLG [2008] that “it would have been “ludicrous”... to disaggregate the different elements of the package and require an appropriate assessment…” and noted “the provisions in the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course…” This view was approved in a number of subsequent judgements of UK courts. We need to get back to this more sensible approach. It offered a good level of protection because, as was stated in Hart, if the decision-maker does not agree with the applicant's view as to the likely efficacy of the proposed mitigation measures, or is left in some doubt as to their efficacy, then they would require Stage 2 assessment because without this they would not be able to exclude the risk of a significant effect. 

Sweetman (No 1): de minimis effects count as an adverse effect

Protected habitats are designated as such on the basis of "conservation objectives". In some cases, these will be the preservation of particular species or collections of species. In other cases, the conservation of the natural habitat type is itself the objective that justified the designation – such was the case addressed in Sweetman (No 1). A proposed road scheme would have resulted in the permanent and irreparable loss of a very small amount of limestone pavement (a "priority" natural habitat type). In total the loss was 1.47 hectares of such habitat out of a total of 270 hectares that existed within the entire site. The amount that would be lost was therefore 0.54% of the total. However, the Advocate-General held that any loss of a natural habitat whose preservation was the reason for the designation constitutes an "adverse effect on integrity". No de minimis level was to be recognised in such cases.

This judgement has had far-reaching implications in the UK in terms of the approach applied by the SNCB. Many more projects are pushed into Stage 3 assessment than was previously the case. Such projects must satisfy the tests of: (i) no alternative (ii) imperative reasons of over-riding public interest; and (iii) provide compensation. This is the case even for broadscale habitats which are not irreplaceable, such as subtidal sand, over which cables need to be laid for projects offshore.

CG Fry Limited: habitats assessment can be required even post-consent

The Court of Appeal held in the CG Fry case that even an "implementing decision" in respect of a consent can be subject to the need to carry out a Habitats assessment. This means that developers who have already got planning permission, a marine licence or a development consent order ("DCO") may have to carry out a Habitats assessment when they seek approval for the discharge of conditions attached to that consent. This leaves developers with huge uncertainty. They could be mid-way through construction or operation of a project only to be told when they seek approval for discharge of some relatively minor condition that Habitats assessment has to be undertaken. This could in principle stop the project in its tracks. If baseline environmental conditions have changed for the worse in the years since consent was granted, the SNCBs could advise the decision-maker against approval of the condition. Alternatively, the SNCBs could advise the decision-maker to approve the condition only if substantial compensation is provided, which could in theory be impossible to deliver.

The offshore wind industry is suffering from a version of this currently, with the SNCBs asking for Habitats assessments even for minor marine licences required to carry out cable repairs during the operational life of a windfarm.

Proposed legislative amendments

The following drafting (underlined in extract below) could be added to article 63 of The Conservation of Habitats and Species Regulations 2017 to address the problems caused by People Over Wind (see proposed paragraph (2A)); Sweetman No 1 (see proposed paragraph (6A)); and CG Fry (see proposed paragraph (7)(d)).

Paragraph (6C) is proposed as a hook for statutory guidance aimed primarily at addressing the customs and practice of the SNCBs (the proposed content of which is discussed later in this article: de minimus; precautionary principle; and compensation).

Why other problems are better dealt with by guidance

There are three issues with the way in which the Habitats regime is currently operated by the SNCBs which are likely to be better dealt with by statutory guidance than legislation – but with a legislative duty on the SNCBs to "act in accordance" with such guidance, rather than merely to "take it into account". See above my proposed new paragraph (6C), to be added to regulation 63 of the Habitats Regulations. The reason these issues are best dealt with by guidance are twofold: (i) we are not seeking to over-ride any relevant case law, but rather some of the unhelpful customs and practices of the SNCBs that have built up; and/or (ii) they are matters requiring judgements to be made by the SNCBs on a case by case basis, and guiding such judgements to be made within sensible parameters is generally too nuanced for legislative drafting.

Recognising de minimis impacts as such

Guidance should be put in place, defining the concept of "de minimis" effects, and directing all SNCBs and other decision-makers on Habitats cases to recognise that where the effects of a project are de minimis, the proposals should be screened out at Stage 1 as having no "likely significant effect". Similarly, the guidance should apply to projects undergoing full assessment at Stage 2. It should state that where projects can be shown to have only de minimis effects, a conclusion of no "adverse effect on integrity" should be drawn. Specific thresholds could be set out, or suggested for different types of impact. The guidance could describe the categories of effect which should be considered de minimis. These should include: (i) negligible but permanent loss of a "feature" of the habitat; (ii) temporary loss of a feature; and (iii) an impact on the ability of a feature to naturally regenerate.

Guidance should make clear that if the impact of the proposed project is itself de minimis and its contribution to the total "in-combination impacts" with other projects is also de minimis, it should not be said to have a "likely significant effect" (at Stage 1) or "adverse effect on integrity" (at Stage 2). This used to be the approach taken by decision-makers, but in more recent years, for some habitats and species, Natural England has refused to recognise any threshold percentage below which they are content to conclude no adverse effect on integrity. Every bat, bird, fish or square metre of sand counts. The turning point was seen in two offshore wind decisions – Vanguard and Hornsea Project 3. This has pushed many more projects of all types into Stage 3 assessment (having to prove no alternative and IROPI; and having to offer compensation, even where their impacts are de minimis). The SNCB's narrow interpretation of what can constitute compensation (see below) has made this a particular challenge for developers.

The guidance should make clear that this approach to de minimis impacts should apply even where a protected site is not in a "favourable" conservation state. Unfortunately, a large proportion of sites are not, due to fishing/climate change and other factors which have nothing to do with developers. The guidance should also make clear that where sites are in an "unfavourable" state, there is no adverse effect on integrity as long as the developer's impact will not adversely affect the ability of, or timetable for, restoration of the site to favourable status.

A more reasonable approach to the precautionary principle

The "precautionary principle" is deeply enshrined in international and domestic environmental law. It doesn't have a consistent legal definition, and is often used without being defined at all. Essentially, the precautionary principle requires that where an effect cannot be ruled out beyond "reasonable scientific doubt", the decision-maker must assume that it will occur. The EU's Waddenzee case in 2002 held that the Habitats Directive must be interpreted and applied by reference to the precautionary principle. The SNCBs apply it at all three stages of assessment. Its impact therefore cuts across most of the issues discussed in this article in one way or another.

The difficulty in practice is that developers and SNCBs often differ over whether or not there is reasonable scientific doubt in a particular case. Every case will be different. There is usually no directly applicable scientific case study. In the marine environment there tends to be even fewer scientific studies, which adds an extra challenge to development at sea. Given that offshore wind is a key component of the Government's clean energy mission, this is particularly unfortunate. Different assumptions about the various parameters of an assessment can swing the conclusions significantly from one side of the line to the other. SNCBs tend to apply the worst case to each parameter, and unsurprisingly then draw conclusions of potentially hugely adverse effects. In reality, the chance of all those worst case parameters eventuating is vanishingly small, yet the SNCBs feel unable to stand back and take a view on the realistic worst case overall.

Anecdotally, I am told by developers who have projects in different jurisdictions that our SNCBs apply it much more conservatively than their counterparts elsewhere.

One person's "reasonable scientific judgement" will not be another's. It is difficult to think of generic words which could be put in guidance to force SNCBs to be universally more "reasonable" in their scientific judgements. My only solution is that guidance sets out and regularly updates (with input from developers and independent scientific experts) specific approaches to assessment. The guidance would direct SNCBs to accept particular modelling approaches and parameters for things like bird collison risk, for example. Government should work with developers who regularly encounter Habitats issues, such as the offshore wind industry, to identify and define the most important parameters and assumptions for assessments. Legislation can require the SNCBs to "act in accordance" with such guidance at Stages 1, 2 and 3 of the Habitats assessment process (see above my proposed new paragraph (6C), to be added to regulation 63 of the Habitats Regulations).

A broader interpretation of compensation

Stage 3 of the Habitats process must be carried out if an adverse effect on the integrity of a protected site cannot be ruled out. The legal tests that must be met in order for consent to be granted if a project reaches this stage are set out in regulation 64(1): (i) that there is no alternative; and (ii) that there are imperative reasons of over-riding public interest for the project to go ahead. If these tests can be satisfied, then Regulation 64 enables consent to be granted, but regulation 68 requires that the body granting consent  "must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected." This is the network of protected sites around the UK.

Energy and infrastructure developers (certainly at the larger end of the scale) can usually demonstrate no alternative and IROPI. Compensation is usually the challenge. There are four key difficulties developers face with regard to the SNCB's approach to compensation:

1. Like-for-like compensation: Firstly, the SNCBs insist on "like-for-like" compensation measures. In other words, if your power station risks killing a certain type and number of fish, you must show how that type and number of fish will be replaced at or near that site by your compensation proposals. The SNCBs do not allow for compensation which in the wider sense addresses the 'coherence of the network' of Natura 2000 sites;
2. Excessive pessimism in both directions: Secondly, the SNCBs adopt a highly pessimistic approach to how successful the developer's compensation measures are likely to be, and therefore the quantum required. For offshore wind projects, for example, the SNCBs base their expectations of compensation on unrealistically high bird mortality rates coupled with unrealistically low success rates for use of artificial nesting structures by breeding birds;
3. Multiplier where there is a timing gap: Thirdly, the SNCBs require compensation to be in place and functioning by the time the impact occurs. Any anticipated gap between impact and compensation leads the SNCBs to demand large multipliers of compensation; and
4. Requirement for "additionality": Fourthly, under the Habitat Regulations, the Government has primary responsibility for managing protected sites in a way that ensures they are maintained in a "favourable" state. In practice, this doesn't happen. Government has no resources to undertake active management of sites (and is not willing to curtail activities like trawler fishing which have highly detrimental effects). The Government also has limited powers to address one of the main problems for protected sites, climate change. Nevertheless, the SNCBs apply the doctrine of "additionality" as if the Government were actively and effectively performing its duties in relation to sites. Compensation measures that developers offer which would improve the poor condition of protected sites are being rejected on the grounds that the Government should be ensuring the condition of those sites anyway. Developers are told they need to offer something over and above this. This narrows the options for compensation significantly and artificially, when developers could actually be helping Government to meet its duties.

There is nothing in legislation or case law to require the above narrow approach. It is purely custom and practice. A more flexible and holistic approach, looking at compensation that might have wider network benefits, should be encouraged via guidance. The exact terms of this guidance will need to be carefully considered. Once one lets go of the yardstick of "like-for-like" compensation to address local assessed impacts, one enters a world of almost too much flexibility and choice over what sort of measures to put in place. However, a high degree of flexibility over how developer's money is spent for the benefit of the relevant ecosystems is something that would be very much welcomed by many nature conservation NGOs. Too often vast sums are being expended for very little benefit to the natural world at the moment.

Species licensing needs a separate fix

The law protects designated "habitats" (those listed as Ramsar sites and Special Areas of Conservation ("SAC")). In most cases, such habitats are designated because of the mixture of species of plants and animals that together form its unique "conservation features". Some of these will be protected species in their own right, regardless of where they are found. In other words, their specialness is intrinsic to them because of their rarity as a species, rather than simply because they form part of a special area of habitat (a Ramsar or SAC).

I have focused above on how to amend The Conservation of Habitats and Species Regulations 2017 ("Habitats Regulations") and guidance insofar as it deals with protected habitats. However, the licensing regime for disturbing protected species also deserves consideration because this can equally be a block to development and lead to expensive compensation schemes which are poor value for nature. HS2's £100m bat shed was in fact one such case.

The test for obtaining a species licence

All bat species and their roosts are legally protected by Wildlife and Countryside Act 1981 as well as the Habitats Regulations. For HS2 this meant that wherever there were known bat populations, evidence needed to be provided to Natural England to show that the railway would avoid harm to what is known as their "favourable conservation status" within 'their natural range’ (s55(9)(b), as well as that there was "no satisfactory alternative" (s55(9)(a)). These tests are in addition to the gateway test of purpose, being: "to preserve public health or public safety or other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment" (s55(2)(e). Without such a licence, HS2 would have been committing an offence under the Wildlife and Countryside Act 1981 if it disturbed or harmed any bats.

Mitigation must be found even at the cost of £100m

For more common bat species, meeting the relevant tests could include simpler mitigation measures – such as new habitat planting to help increase their foraging range, or bat boxes to provide more places for roosting. A large number of wildlife licences (for bats, great crested newts and badgers[1]) have been issued in relation to protected species along the HS2 route, all of which can be found [here], and most of which will not have been problematic.

The difficulty for HS2 at Sheephouse Wood was that the Bechstein bats are a small colony at the northern edge of their range. This meant that complete separation of the bats from HS2's construction works and the eventual passing trains was considered to be necessary in order to maintain their "favourable conservation status" over the long-term.

Natural England will have applied the "precautionary principle" when engaging with HS2 to discuss the types of what measures that were needed in order to secure the species licence. I have no idea whether their judgement was overly conservative from an ecological perspective or not. However, it would certainly be helpful if new guidance on the precautionary principle and de minimis impacts (discussed earlier) were applied to species licensing as well as the protection of habitats.

If the aim is to avoid more £100m bat sheds, however, this will not always be enough.

A legal caveat needed

There will be cases where the impact is not de minimis, and where even applying a reasonable version of the precautionary principle, ecologists consider the colony of bats in question will not remain in "favourable conservation status" following the construction of a railway or other infrastructure, certainly not within "their natural range".

The species licensing regime, unlike the regime for protection of habitats, does not offer a legal option of going ahead anyway subject to provision of "compensation". Therefore, introducing guidance on "compensation" isn't going to help the species licensing problem in the way it would the habitats problem. If HS2 couldn't have shown that the Bechstein bat colony would stay in favourable conservation status, they simply could not have built the line through Sheephouse Wood. They had to offer up "mitigation", however expensive that was, which would preserve the bats' "favourable conservation status", and avoid an offence under regulation 43.

If in future the Government would prefer similarly large sums to be spent on wider ecological enhancement (instead of mitigation to meet the s55(9) test) they will need to introduce some type of caveat to the test in s55(9). The caveat could allow the decision-maker to accept payment for, or delivery of, a wider ecological enhancement scheme in the area where this is considered to be better value for nature. Alternatively, it could support measures to benefit the same species but in a different area of the country (outside of their "natural range", the term used currently in the legislation). Inevitably there will be complexities over who decides the cost, location and nature of such measures, and on what basis. These are difficult issues but ones the Government would need to grapple with.[2]

Would these proposals amount to a "regression" or breach of the Trade and Co-operation Agreement?

In theory, Parliament can make any Act that it wishes. However, over the years, Government has signed international agreements and conventions about how it will legislate for and apply environmental protections. The EU-UK Trade and Cooperation Agreement ("TCA") is the most relevant set of international commitments, because it has the most stringent enforcement mechanism. It requires the UK to: (i) respect the precautionary principle (ii) comply with the Rio Declaration and Convention on Biological Diversity; and (iii) ensure that the UK does not "weaken or reduce, in a manner affecting trade or investment, its environmental levels of protection […]" below the levels in place at the end of the Brexit transition period.

Compliance with the TCA must therefore be carefully considered when reviewing the acceptability of any proposed reforms to the Habitats regime.

The principle that the UK should not weaken environmental protections is often referred to as the principle of "non-regression." It is important to note that regression only breaches the TCA to the extent it affects trade or investment. Having spoken to a number of barristers since writing my previous articles, the view seems to be that this is likely to be a high bar in practice. Furthermore, if the EU did consider such a breach was committed by the UK in changing its Habitats laws or guidance such that developers in the UK had a competitive advantage,  their only recourse would be to start a formal dispute process leading potentially to retaliatory trade restrictions. In today's tariff-fuelled trade war environment, such action seems unlikely.

From a domestic political perspective, the Government will also prefer not to have to make a declaration to Parliament that a proposed legislative reform has the effect of "reducing the level of protection provided for by any existing environmental law". The Environment Act 2021 does not stop the Government from reducing environmental protections, but s20 requires them to own up publicly when doing so. If the measures on "strategic compensation" and EDPs in the Planning and Infrastructure Bill are deemed by Angela Raynor not to constitute regression (as she has stated on the face of the Bill) I see no reason why the package of measures I am proposing should constitute regression.

However, the UK's Office for Environmental Protection has raised some doubts on the question of regression with regard to the current proposals in the Bill, and is looking into the issue "in detail" [here].

In relation to my proposals, it could certainly be argued that the net effect of the changes in law and guidance would be beneficial to the environment overall. This seems to be the case the Government is making to the OEP in relation to the EDP provisions. However, in the face of OEP criticism of my proposals, the Government might ultimately have to accept that by one narrow reading any measures they put in place to make the Habitats regime more proportionate will be considered "regression". Is this so bad, if it leads to better use of developer's money to benefit nature, alongside making consenting of much needed infrastructure slightly less torturous? That is ultimately a political decision.