In response to growing concerns from the environmental sector about the changes proposed in Part 3 of the Planning and Infrastructure Bill (PIB), we sought the opinion of Mr David Elvin, Kings Counsel, on whether part 3 of the Bill reduces the existing levels of environmental protection.

Mr Elvin’s opinion is that Part 3 of the PIB is indeed regressive and thus potentially in breach of international law.

His view 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 NE 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.”

Among many issues addressed in the full Opinion (see below), Mr Elvin concludes that the discretionary, rather than mandatory, approach to protected species adopted under Part 3 means that the same level of environmental protection will not be achieved:

“I therefore consider that the PIB as currently drafted which will replace the HR 2017 licensing where EDPs are made will not maintain the same level of environmental protection since it does not require compliance with the same level of protection as is currently in existence which will be true even if as a matter of discretion in some cases they are applied, since the tests are currently mandatory and universal (subject to exceptions”).

The Opinion provided by Mr David Elvin KC is available in full below.