Two Steps Forward, One Step Back: An analysis of Section 3 of the Planning and Infrastructure Act 2025

Post by Aaron Rohimun

Governing a country is no easy task. At its core, government is about balancing the plethora of conflicting interests which abound modern life. However, the act of balancing interests almost inevitably ends in a decision which must tip one side or the other. When asked recently about how leaders should balance the interests of environmental conservation and food security, Professor Michael Fakhri (United Nations Special Rapporteur for Food) emphasised the need to avoid language of balancing.1 Rather, we should focus on why these issues arise in the first place, who or what is causing them, and which interest is more important. It is thus with a sceptical and cynical cautiousness that this article approaches the Planning and Infrastructure Act 2025, touted by press briefs as the Government’s flagship legislation to simultaneously fast-track housing development and improve national conservation projects. This would seemingly advance both the socially desirable interest of creating more housing and infrastructure as well as the interest of environmental conservation; two issues which frequently butt heads in political debate. In particular, this article will analyse Section 3 of the Act, which reforms the steps developers must take to safeguard against environmental damage which such developments may cause.2

Firstly, it must be laid down exactly what Section 3 of the Act does and what it means for developers. In general, where developments such as new housing projects cause negative environmental impacts, Section 3 creates the option for developers to pay a levy to Natural England to create an Environmental Development Plan (EDP).3 In turn, this EDP sets out what these negative impacts are and establishes conservation methods to address that specific environmental issue. Importantly, Part 3 s61(5) of the Act holds that, provided the development is in England, these conservation methods no not have to address the specific site in question. As the subsection dictates: ‘Where an identified environmental feature is a protected feature of a protected site that is wholly in England, the EDP may set out conservation measures that do not directly address the environmental impact of development on that feature at that site but instead seek to improve the conservation status of the same feature elsewhere.’4 This overhauls reg.64 of the Conservation of Habitats and Species Regulations 2017 which previously mandated that compensation measures were only available where there was an ‘imperative reason of overriding public interest’.5 This was a significant hurdle for developers to overcome and, as Emma Rowland highlights, the change is likely to result in a greater use of compensation measures.6

However, the ability of Natural England to bring an EDP to fruition is subject to several limitations. Firstly, s65 sets out that an EDP cannot be made directly by Natural England. Rather, they must first send a draft of the EDP to the Secretary of State, who must then approve it subject to the criteria outlined in this section. Those criteria (among others) are:

• ‘The Secretary of State may make the EDP only if the Secretary of State considers that the EDP passes the overall improvement test’.7

• ‘An EDP passes the overall improvement test if, by the EDP end date, the effect of the conservation measures will materially outweigh the negative effect of the EDP development on the conservation status of each identified environmental feature’.8

That the test requires that the resulting conservation measures ‘will materially outweigh’ the negative impacts of any development is a welcome change from the statute’s bill form, which initially held that conservation measures be ‘likely to be sufficient to outweigh’ potential impacts.9 This alteration in the subsection, though subtle, does well to raise the bar and ensure that the conservation methods in question are actually worth Natural England’s time and are not merely a superficial loophole for developers. Moreover, s61(5) is further limited by s61(6) which holds that: ‘But an EDP may include conservation measures of the type mentioned in subsection (5) only if Natural England considers that such measures would make a greater contribution to the improvement of the conservation status of the feature than measures that address the environmental impact of development on the feature at the protected site itself’. Again, this ensures that any environmental mitigation measures which would have been taken on a site are not merely swept away de facto to fast-track the development process. Rather, in order for these measures to be bypassed, it must be shown that they would not have been as effective in improving the conservation status of the given environmental feature on the particular site. This is an equally difficult test to overcome for developers and places the requisite barriers to prevent developers dismissing local environmental impacts whilst still leaving the door open to effect measures elsewhere when necessary. However, the mere inclusion of the s61(5) option to dismiss local mitigation measures may worry some. Indeed, it could be said to endorse an anthropocentric view that humans somehow live above, rather than within, the environment. By contrast, it should not be overlooked that these local green spaces form part of our habitat, one which we share with a vast and diverse array of other species. Thus, by creating the option for developers to cause damage to these local environments, we also risk damaging our own habitat. It should also not be forgotten that these spaces offer more than cosmetic value. Often, many within local communities have an emotional connection to the green spaces which surround them. It ought to be recognised how fragile these local ecosystems can be, and damage to them may risk rupturing these emotional connections we have with the land around us.

In conclusion, Section 3 of the Planning and Infrastructure Act 2025 does well to create the possibility of faster housing and infrastructure developments whilst also streamlining funds to national conservation projects. Additionally, the tests and barriers which developers will have to overcome in order to access these streamlined planning processes ensure that it will only be achieved where the measures taken will materially benefit conservation efforts. However, as to whether local mitigation measures should ever be dismissed, the debate remains open.

References: 1 Professor Michael Fakhri, The Right to Food and the Global Order’ (The University of Nottingham Human Rights Law Centre Annual Lecture, 27 th January 2026)

2 Planning and Infrastructure Act 2025, pt3 s59

3 Ibid

4 Planning and Infrastructure Act 2025, pt3 s61(5)

5 The Conservation of Habitats and Species Regulations 2017, s64(1)

6 Emma Rowland, ‘Building a Better Bill: Changes to Part 3 of the Planning and Infrastructure Bill’ (Franics Taylor Building Chambers, 16 th October 2025) https://www.ftbchambers.co.uk/elblog/view/building-a-better-bill-changes-to-part-3-of-the-planning-and-infrastructure-bill-2025 accessed 5th February 2026 7 Planning and Infrastructure Act 2025, s65(3)

8 Planning and Infrastructure Act 2025, s65(4)

9 N5 Bibliography

Fakhri M, The Right to Food and the Global Order’ (The University of Nottingham Human Rights Law Centre Annual Lecture, 27 th January 2026)

Rowland E, ‘Building a Better Bill: Changes to Part 3 of the Planning and Infrastructure Bill’ (Franics Taylor Building Chambers, 16 th October 2025) https://www.ftbchambers.co.uk/elblog/view/building-a-better-bill-changes-to-part-3-of-the-planning-and-infrastructure-bill-2025 accessed 5th February 2026

Table of Legislation

Conservation of Habitats and Species Regulations 2017

Planning and Infrastructure Act 2025