Government attempts to reduce environmental protections in planning bill could breach international law, says KC

The government’s flagship Planning and Infrastructure Bill could be in breach of international law, according to new legal advice from a leading KC.

Planning and environmental law barrister, David Elvin KC of Landmark Chambers, found Part 3 of the Planning and Infrastructure Bill to be “regressive” and potentially in breach of international law.

Mr Elvin’s legal opinion is that the approach adopted in Part 3 is a “significantly laxer approach to protection”, which “allows issues of mitigation/offsetting, compensation and improvement to be fudged in the overall improvement test, wholly depending on the individual decision made by Natural England and the adequacy of the resourcing provided for these purposes”.

Mr Elvin adds that “It is not even clear that the production of an Environmental Delivery Plan for specific development will be any speedier for development than the [current system] where the rules are well-understood”.

These findings, commissioned by NatureSpace Partnership (NSP), significantly undermine the government’s central and regularly reiterated claim that the Planning and Infrastructure Bill will enhance – rather than diminish – existing environmental protections.

There are now serious concerns that the Planning and Infrastructure Bill, currently making its way through Parliament, could be in breach of international law before it even reaches the statute book.

Ahead of a key UK-EU summit next month, the government will also be concerned that it could be in breach of the EU / UK Trade and Cooperation Agreement, as Mr Elvin also concluded that “Part 3 of the PIB and the associated schedules of the PIB as they currently stand do amount to a weakening or reduction of the environmental levels of protection within Article 391(2) “the levels that are in place at the end of the transition period” i.e. at the end of 2020”.

The Planning and Infrastructure Bill aims to accelerate the planning process for new developments and ‘remove unnecessary blockers’ – which the Government claims will boost economic growth, connectivity, and energy security whilst also delivering on environmental commitments. This Bill represents a significant change in how the Government aims to approach the planning system, and in the relationship between development and nature recovery.

However, many ecologists and environmental campaigners – including members of the Chartered Institute of Ecology and Environmental Management (CIEEM), the leading sector body in the UK and Ireland – are deeply concerned that the Bill will lead to unnecessary and irreparable ecological harm while simultaneously imposing additional costs and delays on developers due to the uncertainty around the scope of the proposed Environmental Delivery Plans (EDPs).

Commenting on the publication of the legal opinion, Sally Hayns, the CEO of CIEEM, said:

“The current version of the Planning and Infrastructure Bill, whilst containing some important principles which would be of benefit to both the economy and the environment, is significantly flawed and needs an urgent rethink.

“The Bill is a grave threat to existing environmental protections that were hard-fought for, and as this legal advice shows, is likely to be in breach of international law.

“Ministers are urged to pause the parliamentary progress of the Bill and consider sensible amendments that would ring-fence environmental protections. Failure to do so could risk rolling back vital ecological safeguards, hinder further development, and risk legal challenges further down the road.”