How to get Habitats Regulations right
A plan to better protect nature and build more clean infrastructure
The UK is one of the most nature depleted countries on the planet. From farmland birds to insect life - all our key biodiversity indicators are in decline. Pinning the blame for this squarely on our framework of environmental regulations would ignore the central roles of agricultural pollution and unscrupulous water companies - but any reasonable person would look at the evidence and conclude that our environmental protections are fundamentally not doing their core job: protecting nature. At the same time the myriad rules and designations are also making it harder, or sometimes even preventing us entirely, from building new homes, new transport links, and the new clean energy that the country needs to tackle climate change, the biggest driver of biodiversity loss.1
We have multiple types of protected sites - some with real legal force, others not, some derived from the EU, others not. The UK was one of the first countries in the world to introduce protected sites in 1949 - since then the patchwork of protections has become increasingly messy; with additional statutory and non-statutory designations added over decades. For example, over 80% of our Sites of Special Scientific Interest (SSSIs) by area are also designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). This layering of different processes and obligations has not delivered better results for nature - under half (40%) of SSSIs are in favourable condition.
On top of this complex patchwork of different types of protected sites for builders to get to grips with now sits, somewhat uneasily, the Environment Act, with legally binding targets to restore nature and a headline target to see nature no longer in decline by 2030. Yet these targets are not wired to our framework of UK protected sites.
So we have a hugely complex framework of environmental protections that are a nightmare for developers to navigate, and are also failing to protect nature - all while being totally unmoored from our core legislation aimed at nature restoration.
How do these protected sites, and the Habitats Regulations that apply to them, make it harder to get Britain building again? Partly the complexity of the system itself cause delay, as developers are forced to produce process-focussed documents that are thousands of pages long. But the core of the issue is that where sites are in an unfavourable condition (as they often are) there are significant constraints on development - even when new development is a very small contributor to the problem. Perhaps the most high profile example of this are the roughly 145,000 homes blocked in the South of England due to the Habitats Regulations - EU derived rules around protected sites, that following an ECJ ruling on nutrient neutrality has effectively banned housebuilding in certain parts of the country. Occupancy of new homes accounts for just 0.29% of total nitrogen emissions each year and 0.73% of total phosphorus - by contrast agricultural activities are responsible for around 70% of the nitrogen in our rivers and streams. Yet the process-focussed Habitats Regulations do not take the farmers to task; the way in which our laws around protected sites are applied have instead meant a blanket ban on new development.
This is clearly untenable, and a solution for this specific issue was proposed by the last Government, but fell in Parliament. In part this was because the government chose to carve out housebuilding’s nutrient pollution from the habitats regulations, rather than seek a wholesale reform to the regulations to allow us to both get building and to make sure developers pay their fair share for their pollution. This - indeed the broader record of the last Government which tried but ultimately failed to deliver substantial reform to our protected sites - should be a warning for the new administration.
There are shorter term fixes to Habitats Regulations issues that would not require primary legislation. Improved guidance could promote a more proportionate approach and provide more clarity for developers. The Government’s green watchdog - the Office for Environmental Protection - has set out certain areas of case law where the UK might be able to revert to a more pragmatic approach.
But the Government has a golden opportunity, right now, to deliver the wholesale reform needed by both those who want to better protect nature and those who want Britain to get building again.
Rather than adding another layer of complexity to the top of the process they should start again at the bottom - rationalising and simplifying the long and overlapping list of protected sites, strengthening protections in areas with high natural capital, and restoring habitats with private sector investment. This investment would come from streamlining the process for building in areas with poor biodiversity. Where new projects are likely to lead to negative environmental outcomes, developers could either be required to purchase off-the-shelf nature recovery solutions from a government-approved list that is linked to species abundance targets in the Environment Act - or contribute to a central Nature Restoration Fund that is deployed to bankroll the recovery of species by 2030, in line with the strategic targets set out in the Act. A version of this approach partially exists for offshore wind already, but should be extended to all infrastructure. Our protected sites would then be properly wired to our nature restoration targets, and backed by billions in private sector investment - while our builders would be able to crack on delivering the homes and clean infrastructure our economy needs.
All of this would require primary legislation - and it may be that despite the work already done in Defra, the scale of reform comes too soon for the upcoming planning bill in this parliamentary session. There will be concerns about risks associated with such a big change - from developer uncertainty to unease amongst conservation groups about a wholesale review of existing protections. But we know those protections aren’t working to protect nature, and as the last set of Ministers found there is a far greater risk for the new Government in failing to deliver the necessary reforms before being timed out - and then being unable to deliver on their mandate to get Britain building again. The Starmer Government, right now, has both the political capital - and also the political need - to finally grasp the nettle on Habitats Regulations reform. Short term tweaks can only deliver so much - the real prize is lasting reform that delivers better outcomes for people and nature for decades to come.
As an aside, it’s worth noting that climate change itself means our current framework of protected sites requires updating. Warmer temperatures lead to changed migration patterns and habitats: we are increasingly protecting the wrong places.