Defra issues strategic steers for green watchdogs

(by Karma Loveday)

Defra has published its first Strategic Policy Statements (SPSs) for the Environment Agency (EA) and Natural England (NE), which include guidance on enacting the ‘constrained discretion’ advised by the Independent Water Commission.

The statements are non-statutory but intended to complement statutory objectives and duties for each regulator. Principally, they set out the environment secretary’s expectations on how to deliver on both nature recovery and economic growth, and are designed to be embedded into decision-making.

The Department said the new guidelines give England’s two most powerful regulators “a mandate to prioritise outcomes over process, speeding up decision making while maintaining high environmental standards. This will be backed by £100m, spread over three years, to fund specialist staff and modern digital systems, so regulators can help developers to complete environmental assessments more quickly and accurately — cutting costly delays.”

Defra continued: “A new Infrastructure Unit will keep major projects on track, tackling planning problems as they emerge, with the most complex issues passed to the Defra Infrastructure Board for further scrutiny. Moreover, a new Development Industry Council will bring developers and government together in the Spring to discuss practical solutions to planning challenges.” 

The EA’s strategic priorities were articulated as:

• Enhance the performance and efficiency of regulatory services

• Promote healthy air, land and water and support nature’s recovery

• Support transformation of the water sector

• Increase resilience to flooding and drought.

NE’s strategic priorities were articulated as:

• Enhance the performance and efficiency of regulatory services

• Support nature’s recovery

• Improve health and wellbeing

• Deliver resilience through nature

• Support transformation of the water sector.

As shown, both bodies are charged with supporting the transformation of the water sector. According to the EA SPS: “The secretary of state will soon issue the EA with a ministerial direction, specifically instructing the EA on how to carry out certain duties to support water reform. This specific direction will complement the priorities set out in this SPS. This ministerial direction will have legal force and reflect the contents of the Transition Plan. This direction will align with the priorities and approach to decision-making set out in this SPS but will provide more water-specific detail.” 

Both regulators are also expected to embrace ‘constrained discretion’. In the EA’s case: “The Government expects the EA to embed a change in culture that supports proportionate, outcomes-focused decision-making which exercises maximum use of constrained discretion… to ensure its advice and decisions consistently enable and support economic growth where its statutory and regulatory framework allows for such discretion. The EA should ensure its case work supports flexible, proactive and legally defensible decision-making in pursuit of this objective.”

The SPSs set out principles for constrained discretion (see below) and told the watchdogs to establish governance for it through pre-existing frameworks; to train decision-makers on the application of constrained discretion principles in practice; and to ensure accountability by recording decision-making and following appropriate review processes.

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Constrained discretion principles:

Strategic alignment for the long term:

• Decision-making should align with Defra’s strategic priorities and the Government’s wider objectives as set out in the Plan for Change. 

• Regulators should prioritise successful delivery of strategic priorities in the long term, including by considering the current and future needs of people and the environment.

Joined-up and place-based approach:

• Regulatory activities should be informed by an understanding of the local context, wider environmental conditions, and place-based priorities. The needs of individual sites should be balanced with the context of the wider local environment they sit within. Consideration should be given where areas have been empowered through devolution to develop locally led solutions that deliver on national priorities, for example Local Nature Recovery Strategies, Local Growth Plans and Regional System Planning groups.

• Collaboration with other relevant regulators, planning bodies and government departments is expected, to ensure joined-up regulatory decision-making which best serves local communities. This includes aligning timetables, sharing relevant data, and conducting reviews in parallel where appropriate.

Supporting innovation:

• Regulators are expected to find creative solutions and give pragmatic support to achieve good outcomes for nature and for growth, whilst operating within the existing legal framework. This could involve testing new solutions.

• Innovation should be championed by engaging with emerging sectors to identify regulatory approaches that enable growth while protecting the environment, including making use of tools such as regulatory sandboxes.

• Constrained discretion should be used to build cases that inform future policy and legislative changes.