In conjunction with the UK’s recent departure from the EU, the government must produce and implement its own domestic environmental law. The Environment Bill, first published in January 2020, delineates the government’s blueprint for environmental reform post Brexit and has been designed so as to strengthen local governance leadership to foster significant environmental improvements. The Bill introduces a new legal framework in respect of air pollution, water quality and nature conservation. Environmentalists have heralded this as a unique opportunity to tailor-make a system which better reflects the UK context. However, industry commentators have warned that standards must not be lowered once ties with the EU are severed. Accordingly, the notion of non-regression is central within the emerging legislation.
Progress on the Environment Bill has been somewhat delayed during the pandemic; as from Tuesday 26th January 2021 the Bill is at the Report Stage in the House of Commons.
We have summarised the main components of this emerging legislation below.
General duty to ‘enhance’ biodiversity
In the first instance, Part 6 and Schedule 14 pertain to regulating biodiversity and set out a general duty to ‘enhance’ biodiversity in England and Wales, thereby updating the Natural Environment and Rural Communities Act 2006 (Clause 93 (2)). This duty would need to be evidenced through published reports. As such, environmental considerations when determining applications will be heightened, with the current arrangement only stipulating that planning policies and decisions ‘should’ enhance the environment in terms of reducing adverse implications and providing net gains for biodiversity, as stated in the NPPF.
Biodiversity net gain as a pre-requisite
In relation to the sphere of planning, the central facet of the new system is the mandatory requirement for biodiversity net gain which is to become a condition of planning permission in England; the granting of planning permission would be premised on the understanding that the objective of biodiversity gain is fulfilled. Of significance, the biodiversity net gain of any development would have to exceed the pre-development value by 10%, as measured by an updated biodiversity metric published by Defra. To facilitate this mandatory requirement Schedule 14 of the Environment Bill will insert Section 90A into the Town and Country Planning Act 1990 with Schedule 7A ‘Biodiversity gain in England’.
Subsequently, ‘biodiversity gain plans’ will need to be approved by the Local Planning Authority (LPA). The gain plans will be expected to denote the biodiversity merit of onsite habitats both prior to and after development, along with procedures to reduce adverse effects. They must also confirm how gains would be obtained. Biodiversity gains must be guaranteed for a period of at least 30 years. It is expected that the LPA would monitor this through planning obligations or conservation covenants.
This condition may be met at the time of granting planning permission, whereby the LPA simultaneously approves a biodiversity gain plan upfront, most likely within the context of straight-forward proposals. Conversely, the developer will have to submit this requisite information afterwards; in this respect planning permission would depend on approval of this information by the LPA, akin to a pre-commencement planning condition.
Exceptions to this mandatory condition include schemes granted by a development order, or under section 293A (urgent Crown development), or development ‘of such other description as the Secretary of State may specify by regulations’. Part 1 of the Bill includes a power to denote these exceptions in secondary legislation. It is likely that permitted development schemes will be excluded, as will householder applications, minor commercial development, nationally significant infrastructure and marine schemes. The extent to which brownfield sites will be exempted will also be outlined within secondary legislation.
Mitigation hierarchy and credits
What is more, a mitigation hierarchy will favour projects that do not necessitate mitigation as they do not undermine biodiversity. Projects that include on and off-site mitigation procedures will then be preferred, with compensation measures considered last. In relation to the last resort- in the event that developers are unable to provide the requisite on-site biodiversity gains they will be required to purchase credits by way of compensation. It is understood that councils and landowners would be able to establish localised habitat compensation schemes, with the proviso that there would also be a central government supply of credits as a last option. According to explanatory notes, the SoS will establish a system to sell a supply of statutory biodiversity credits and proceeds will be attributed to strategic ecological networks and long term environmental benefits. Crucially, it is intended that the price of credits does not deter local development. Surplus details on this matter are yet to be confirmed.
Local Nature Recovery Strategies
Another aspect of the Bill includes the requirement for councils to prepare and publish Local Nature Recovery Strategies in England; these tools are intended to allow for enhanced spatial planning for nature recovery via the setting of priorities and opportunities to protect and invest in nature on a localised scale. A map of existing nature assets will stand to identify important opportunities for enhancement. These tools will aid strategic planning in terms of housing applications and infrastructure projects.
Public biodiversity gains site register
Provisions for establishing a public biodiversity gains sites register are also included. This register must be maintained for at least 30 years after the completion of enhancement works. The register is designed to provide transparency in offsite enhancements for developers, planning authorities and others, and to confirm both that any offsite biodiversity gains are only allocated to a single development and that the requisite agreement to deliver biodiversity gains are in place.
Part 7 of the Bill includes provisions to provide for Conservation Covenants: “voluntary, legally binding private agreements between landowners and responsible bodies, designated by the Secretary of State, which conserve the natural or heritage features of the land, enabling long-term conservation”.
Office for Environmental Protection
Also of note, the Bill creates a new environmental watchdog: The Office for Environmental Protection. This body will be tasked with holding governments and public organisations to account in relation to environmental matters of concern. The public body is designed to assume the role of the European Commission after it ceases to have jurisdiction. It is expected that the OEP will cover Environment Impact Assessment and Habitats Regulations Assessments.
Guidance already published by certain councils
Certain councils have published guidance in anticipation of these new rules; the newly formed Buckinghamshire Council is currently consulting on a Biodiversity Accounting SPD which sets out how the Council intends to achieve biodiversity net gain: “the council and those making planning applications will calculate the development impacts on biodiversity as part of their landscape plans [which will enable] schemes to be devised to ensure that a net gain in biodiversity is delivered on site”.
Warwickshire and Lichfield councils have already outlined their biodiversity gain strategies. To this end, there is some precedent in terms of how to approach these upcoming requirements.
These parameters represent an additional admin hurdle involving extra costs. Nevertheless, overall, it is hoped that the requirement for biodiversity net gain will create new habitats and prevent the loss of several thousands of hectares of habitat for wildlife on an annual basis. The measures will supplement current protections; in terms of protected sites, net gain requirements would be enforceable after the grant of planning permission which would take into account the existing legal and planning policy requirements for protected sites in the present way.
At the time of writing, it is anticipated that the Bill will receive Royal Assent in Autumn 2021 and the new rules will become a legal requirement two years after this, in 2023.
The Firstplan team will continue to monitor the progress of this emerging legislation.
- Updates on the emerging legislation are available at: https://bills.parliament.uk/bills/2593
- The current version of the Environment Bill [27th November 2020] can be found here: https://publications.parliament.uk/pa/bills/cbill/58-01/0220/200220.pdf
- The Policy Paper on the Environment Bill is available at: https://www.gov.uk/government/publications/environment-bill-2020#history