Government’s plans for a ‘Nature Restoration Fund’, set out in Part 3 of the Planning and Infrastructure Bill, set aside comprehensive existing legal protection regimes for our most important species and habitats in favour of a complex and untested new system, where the resulting conservation measures may take up to 10 years to arrive, monies are paid into a national scheme with no requirement for local delivery, and the charges levied may not even be sufficient to cover the actual costs. The new system is likely to create more uncertainty for developers and planning authorities and create more complexity for Natural England.

In spring this year David Elvin KC provided his expert view on whether Part 3 of the Bill was ‘regressive’ when compared to existing legislation. Secretary of State Angela Rayner had made a declaration at the start of the Bill that it wasn’t – “the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.

Mr Elvin KC’s first opinion on the original wording of Part 3 (Opinion I, 23 April 2025) concluded that Part 3 was regressive. Mr Elvin KC was particularly concerned about:

• the gulf in timing of consent for development and delivery of conservation measures
• the replacement of the existing rigorous assessment of impacts with a new broad balancing discretionary “overall improvement test”
• the absence of a mitigation hierarchy and the removal of tests that defined resort to compensation measures
• the risk of the levy being insufficient to cover the costs of the conservation measures such that the “polluter is paying but only if not too expensive”
• confusion in the interaction with the planning system

Mr Elvin KC said “In my view the solution adopted is a significantly laxer approach to protection, allows issues of mitigation / offsetting, compensation and improvement to be fudged in the overall improvement test, wholly dependent on the individual decision made by NE and the adequacy of resourcing provided for these purposes and a clear reduction in existing environmental protection”.

In July 2025 the Government proposed amendments to Part 3, claiming that “…we are confident the following package will provide reassurance that the Nature Restoration Fund will restore, not harm nature, while at the same time ensuring housebuilders benefit from the same streamlined process to discharge their environmental obligations and get Britain building.”.

Mr Elvin KC has now provided further analysis and is clear that Part 3, even with the Government’s amendments, remains regressive.

Mr Elvin KC states: “I …. consider that the Government Amendments fail to achieve the high standards MHCLG claims for them…. [and that] they clearly fail to prevent the provisions of Part 3 being regressive…… and that the reality is that Government is promoting development at the expense of environmental protection.

In conclusion, having considered the Government Amendments and the recent judgment of the Court of Appeal on s.19, my view remains that Part 3 of the PIB has the effect of reducing the level of environmental protection provided by existing environmental law and the Secretary of State’s statement pursuant to s 20(2)(a) and (3) of the Environment Act 2021 is incorrect”.

In this latest opinion Mr Elvin KC is particularly concerned that:

• the change made to the overall improvement test “is not a major one since the judgment is as to the future and in the context of protected features of European (and Ramsar) sites, the requirement of ‘certain’ has a particular meaning…which is not replicated here” and “the provision in cl. 60(4) substitutes a mandatory series of hurdles to be overcome in Habitats Regulations 2017, both in respect of European sites and European protected species, with a general discretionary test”
• the new duties on the Secretary of State and Natural England such as to “take account of the best scientific evidence” and “to have regard to other plans and strategies” do not resolve these concerns, especially since they do not apply to the Secretary of State making an EDP or applying the overall improvement tests
• the new duties still fall short of the existing European site and European protected species provisions which use similar concepts but do not carry with them the overall laxer judgments found in the Part 3 provisions as a whole
• the choice between the various compensation measures available within an EDP does not create anything remotely comparable to the structure of existing legislation for European sites or European protected species since the conservation measures are wholly a matter for the discretion of NE and the Secretary of State
• the anticipated sequencing of the implementation of conservation measures now proposed in cl. 55(3A) also does not resolve the earlier concerns: these matters all remain subject to whether they can be achieved in practice and, without legal requirements, their achievement is necessarily uncertain and therefore regressive
• contrary to MCHLG’s assertion, s19 of the Environment Act (duty of the Minister to have due regard to the Environmental Principles Policy Statement, which would apply to making an Environmental Delivery Plan) “is sufficiently flexible to allow the Minister to prefer development as a policy choice over environmental protection”.

The CEO of NatureSpace, Dr Tom Tew, commented that:

“The opinions of Mr Elvin KC make it clear that the PIB, as it heads into Committee stage in the Lords, is environmentally regressive. Much of the legal uncertainty would be resolved simply by removing protected species from Part 3, leaving it to function for the diffuse effects (as was originally intended). The environment sector do not want to block development, we are fully supportive of the Government’s agenda for sustainable growth and there are a wide range of legal mechanisms already working well which will provide that win-win. The poorly drafted species provisions of Part 3 will actually slow development as well as harming wildlife.”