Some experts have ranked biodiversity loss and ecosystem collapse as the third-most severe global risk over the next 10 years. Given the built environment is responsible for around 30% of all biodiversity loss, Aotearoa New Zealand’s construction and infrastructure sector will play a pivotal role in how we mitigate this risk.
In Aotearoa, major infrastructure projects typically seek to avoid, remedy or minimise their negative impact on the environment, consistent with obligations under the Resource Management Act 1991. However, nature-positive infrastructure, a concept gaining momentum globally, provides an opportunity to challenge how infrastructure is perceived, planned, designed and constructed – to deliver truly positive outcomes for both communities and the environment.
What is nature-positive infrastructure?
Nature-positive infrastructure is an emerging concept and a universally accepted definition is still evolving. In 2023, the International Federation of Consulting Engineers and the World Wide Fund for Nature produced a Playbook for Nature-positive Infrastructure Development, which identifies several common principles for the term:
- A nature-positive approach should ‘put nature and biodiversity gain at the heart of decision-making and design’.
- It needs to go ‘beyond reducing and mitigating negative impacts on nature as it is a proactive and restorative approach focused on conservation, regeneration and growth’.
- In effect, nature-positive infrastructure would either incorporate nature and biodiversity considerations as part of the project design or be accompanied by substantial ecological restoration and enhancement.
- Nature-positive infrastructure should thoroughly consider climate change as well.
For infrastructure to be truly nature-positive, it must achieve a biodiversity net gain – an outcome that is infrequently, if ever, attained. Keyn Glas in the UK is a rare example of a project that aimed to go beyond essential mitigation of negative impacts to actually enhancing biodiversity.
Working with Highways England, Arup designed a landscape scheme alongside the A30 in Cornwall that takes a regenerative land management approach to restoring habitats and historic landscapes, sequesters carbon, delivers biodiversity net gains and reduces the risk of climate change impacts such as flooding.
The benefits of designing nature-positive infrastructure are far-reaching, from increased biodiversity and resilience to economic and social improvements. In a world facing climate and biodiversity crises as well as strong population and urban growth, there is an obvious need to secure such benefits from our infrastructure.
Contracting for nature-positive infrastructure
Aotearoa’s current regulatory framework does not expressly provide for nature-positive infrastructure. Other jurisdictions are taking a
directive approach. For example, the UK’s Environment Act 2021 mandates that all developments must achieve a biodiversity net gain of at least 10% to be maintained over 30 years.
In the absence of legislative mandate, parties to construction and infrastructure projects in Aotearoa can choose to contract proactively for nature. This may prove necessary for organisations that have biodiversity and carbon targets as well as contractors and designers working with large international organisations, including funders, who have internal and/or regulated obligations and commitments to biodiversity and carbon targets.
Include specific provisions
Parties can empower their commercial and legal teams to negotiate tailor-made provisions to accommodate specific nature-positive goals. These are best identified at the outset of projects so they can be incorporated into and carried through existing contractual frameworks. Parties should ensure that such goals are clearly defined and measurable within these frameworks so that any loss resulting from a breach can be measured and is legally enforceable.
Construction and infrastructure contracts may account for nature by requiring certification under the IS rating scheme – used for evaluating the economic, social and environmental performance of infrastructure across its lifespan. Another excellent starting point is The Chancery Lane Project, which provides simple guidance for creating and implementing climate-aligned clauses and other legal resources relating to environmental considerations. The guidance is freely accessible online and includes a bank of clauses specific to construction contracts.
As an example, Edgar’s Clause, designed for insertion into landscape architect appointments and building contracts, requires the landscape architect to work with other professionals to ensure that the development achieves a specified percentage biodiversity gain that will be maintained for at least 30 years. It also imposes a minimum percentage of native flora and an obligation that only native trees are specified for use in the landscaped area.
How to include in procurement briefs
The Playbook for Nature-positive Infrastructure Development is a living document. In September 2024, a new chapter on early life cycle stages and procurement strategies was published. It sets out how funders, developers, government departments and agencies and contractors can incorporate content on nature-positive infrastructure into their procurement process project briefs and scopes of work.
A developing opportunity
Collaboration within the construction and infrastructure sector and across countries will help to promote the concept of nature-positive infrastructure. The more resources and examples, the greater and faster the uptake. While biodiversity loss is a risk, we have an opportunity to be creative and innovative with our infrastructure to contribute to the solution and prove that nature restoration and commercial viability can coexist.
NOTE: This article is not intended as legal advice.