The Levelling Up and Regeneration Bill is key to ensure that a robust planning system supports and drives nature’s recovery rather than undermining it. However, in its current form, the Bill represents a missed opportunity to make a greater contribution to delivering the Environment Act targets and tackling the nature and climate emergency.
As the Bill returns to the House of the Lords this week, we hope that the Lords speak in support of the following amendments on nutrient neutrality, protected landscapes and the Environmental Outcomes Reporting (EOR) during the Committee Stage. Carl Bunnage, RSPB Head of Nature Policy, England, outlines the important amendments ...
Protected landscapes cover 25% of land in England, and hence are essential to meet the UK Government’s commitment to protect 30% of land and sea for nature by 2030 (known as ‘30x30’). Outdated protected landscapes legislation though means that the majority of sites in National Parks and Areas of Outstanding Natural Beauty (AONBs) are not effectively managed for nature, as the Government itself stated in its response to the Glover Landscapes Review.
Lord Randall has tabled a welcome clause which has received cross-party support, that would update the legislation underpinning protected landscapes: including through establishing a new statutory purpose for them to further nature’s renewal; enabling more effective management for nature and a greater contribution to 30x30, along with increased benefits for climate and people; whilst also ensuring that cultural heritage and their natural beauty are conserved and enhanced.
Environmental assessments play a vital role in limiting nature and climate harms from planning decisions, and directing development away from environmentally important sites. Part 6 of the Bill gives the Secretary of State the power to replace existing environmental assessment systems (Strategic Environmental Assessment and Environmental Impact Assessment) with a new regime, Environmental Outcomes Reports (EOR).
However, the new EOR regime lacks policy detail which will only be revealed later through secondary legislation, which is worrisome as it could potentially lead to a regression in environmental protections. We support the following amendments to ensure that the EOR system raises rather than lowers environmental standards:
EOR and climate
Currently, the Bill lacks any assurance that the EOR regime will include climate as a key consideration. Baroness Hayman of Ullock has tabled the welcome amendments 371, 372 and 378 to clause 138, which strengthens the protection of the climate as a key environmental outcome, replacing the ‘hope’ that the Bill will cover climate with legal certainty. These amendments ensure that the mitigation of climate impacts, the need to improve protected sites, and the compliance of secondary legislation with UN Sustainable Development Goals (SDGs), especially climate action, are key EOR considerations.
EOR and non-regression
Clause 142 of the Bill gives the Secretary of State the power to change individual existing protections when making regulations, so long as the ‘‘overall level of environmental protection’’ will not be less than before. But this wording allows the Secretary of State to weaken existing individual protections, as long they consider this to be balanced out elsewhere to maintain an overall level. Giving the Secretary of State the power to make subjective judgements on the balance of environmental protections opens the door to regression.
Baroness Hayman has tabled amendment 377 to clause 142 which will remove the phrase ‘’overall level’’ and replace it with a stricter non-regression test based on objective criteria. This would require the Secretary of State to demonstrate that EOR regulations would not diminish any environmental protections at the time the Bill passes.
EOR and devolved administrations
Clause 143 requires UK Government Ministers to consult with Ministers of devolved administrations (Scotland, Wales and Northern Ireland) if the EOR regulations fall within a devolved administration’s competence. Such a weak requirement could see EOR regulations imposed on devolved nations after merely consultation and without the consent of their administrations. This could increase the risk of environmental regression if the new EOR regulations impose weaker requirements than those put in place by the devolved Government.
Baroness Taylor has tabled amendments 379, 380 and 381 to clause 143 which would address these threats by requiring Ministers to secure the consent of devolved administrations before setting an EOR regulations within the competence of that administration, rather than merely consulting with them.
EOR and habitats regulations
Habitats Regulations requirements are the strongest protections for nature in our planning system. They preclude nearly all development that could harm a protected site. The current drafting of clause 149 on the Bill would appear to make provision for requirements carried out under an EOR to satisfy Habitats Regulations requirements. But there is a risk that EOR requirements - the details of which will only be set by secondary legislation - could be weaker than Habitats Regulations, permitting more damage to protected sites. This concern was also raised by the Office for Environmental Protection during the Commons Committee Stage.
Lord Randall of Uxbridge, Baroness Jones of Whitchurch, Baroness Willis of Summertown and Baroness Bakewell of Hardington Mandeville have tabled amendment 384 which would address this problem by only allowing EOR requirements to satisfy Habitats Regulations requirements if they are functionally the same.
EOR and Greater Parliamentary Scrutiny of Details Currently, the Bill only requires regulations that will set out the details of the EOR regime to go through the ‘affirmative procedure’, which gives Parliamentarians the chance to accept or reject a regulation without full access to the details of how it would be brought forwards. However, this process lacks sufficient scrutiny for regulations which set a whole new system of environmental assessment for development.
Baroness Hayman has tabled Amendment 388 which would address this gap by requiring EOR regulations to be subject to increased parliamentary scrutiny. This would provide an additional 60-day period for parliamentarians to meaningfully shape the detail of the new system of environmental assessment, and to work with Ministers on content changes to ensure the regulations lift rather than lower environmental standards.
Nutrient pollution is an urgent problem for our freshwater habitats and rivers. Nutrient neutrality is a measure used to ensure that any increase in nutrient pollution (usually the discharge of nitrates and phosphorous) caused by new development is offset.
Clause 153 of the Bill puts a duty on water companies to upgrade sewage disposal works to meet new nutrient pollution standards. While this is a welcoming measure to address nutrient pollution, such a site-specific approach, focusing solely on wastewater treatment, is a missed opportunity for environmentally effective alternatives such as habitat restoration across entire freshwater catchments.
Collaborations between water companies and nature groups have shown that habitat restoration across catchments, referred to as catchment-based approaches and nature-based solutions, can be just as effective at reducing nutrient pollution as on-site sewage disposal work upgrades, whilst also delivering environmental benefits at a lower cost.
Restored habitats act as nutrient sponges, store more carbon and increase public access to nature-rich spaces, and also contribute to the delivery of the Environment Act species abundance target along with other 2030 nature goals.
Baroness Willis of Summertown, Baroness Parminter and Baroness Jones of Whitchurch have tabled amendment 390 that would enable water companies to meet new nutrient pollution standards through nature-based solutions deployed across catchments, rather than just through on-site sewage upgrades works, delivering additional nature and climate benefits.
We thank all those Peers who fought for and tabled amendments to make this Bill work for nature, people and planet. We strongly hope that the Peers speak up in support of protecting nature during the forthcoming Parliamentary debates. We will be providing more details and updates over the coming weeks, so watch this space.