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Bryan Cave Leighton Paisner| Bryan Cave Leighton Paisner

Bryan Cave Leighton Paisner| Bryan Cave Leighton Paisner

The Environment Act 2021 (the Act), which was first introduced in Parliament in 2019, finally received royal approval and became law on the 9th of November 2021.  This important and broad-ranging Act has been carefully scrutinised, debated, and amended throughout its lengthy passage through Parliament. (Please see our previous blog about the Bill). Here) and introduces a new post-Brexit environmental protection regime.

The Act establishes a framework post Brexit to improve and preserve the natural environment. The Office for Environmental Protection will oversee this.  It also includes provisions that cover waste and recycling as well as air quality and recalls of products that do or not comply with environmental standards.

Planning implications of this Act

The planning system plays an important part in protecting the environment. It is enshrined as one of three overarching objectives in national planning policy: to protect and improve the environment. This Act introduces new requirements that will enhance this objective. For example, new local nature recovery strategies must be prepared by a ‘responsible authority’ to support plan-making and other measures by local planning authorities.

One of the Act’s most ambitious provisions, however, overlaps with the planning system is a new mandatory requirement that developments provide a 10% biodiversity net increase.  

Biodiversity net gain – what is it?

It is not new to the concept of and quantification for biodiversity net gain.  The current planning policy encourages biodiversity improvements through the planning process, but there has not been a statutory requirement that developments deliver it.

This Act changes it. It will, through amendments made to the Town and Country Planning Act 1991, require all permissions granted in England to be subject to a general pre-commencement requirement that requires approval for a biodiversity gain plan.

The planning authority can only approve the biodiversity gain plan if the biodiversity value attributable to a development exceeds the pre-development biodiversity value of the onsite habitat by 10% which, for the purposes of the legislation, is known as the ‘biodiversity gain objective’.

The biodiversity plan must set out the steps taken to achieve the ‘biodiversity gain objective’, which could be through minimising the adverse effects of the development on habitats, the identification of the pre and post development onsite biodiversity value, details of registered offsite biodiversity value allocated to the development and biodiversity credits purchased, and any other information that may be required by regulations. 

Exceptions

Subject to certain exceptions, the biodiversity condition is now included in all planning permissions for development in England once the relevant provisions have been put into effect. Exempt from the exemption will be development orders granted for urgent crown developments or other development as prescribed by Secretary of State. We expect that the Secretary will expand the exempt category through regulations (there’s a lot to do so), but it’s not clear yet which categories.

While there is no requirement to include a general condition in Development Consent Orders(DCOs), the Act does contain equivalent provisions for 10% biodiversity Net Gain to be applied for nationally significant infrastructure projects approved through the DCO regime.

Developers can create mechanisms to meet the biodiversity requirements

Flexible mechanisms will be available to increase biodiversity value and demonstrate a 10% biodiversity net loss. Works to enhance habitats can be carried out either onsite or offsite or through the purchase of ‘biodiversity credits’ from the Secretary of State.  However, this flexibility may be removed (subject to regulations) if the onsite habitat is ‘irreplaceable’.  These developments require that arrangements are made to minimize their negative effects and make improvements onsite.

For 30 years, enhancements have been maintained

Both onsite and offsite improvements must be maintained for at most 30 years after a development is completed (although this period can be extended).

See Also

Onsite enhancements must be secured by planning condition, s106 obligation or a conservation covenant, which is a written agreement that is registrable as a local land charge, between a landowner and a ‘responsible body’ that binds a landowner and its successors to do/not do something on the land for a conservation purpose.

Offsite enhancements must either be protected under a s106 agreement, or a conservation covenant, and must be registered in the public, publicly accessible, biodiversity gain site register.  

The flexibility around offsite enhancements may lead organisations with large non-operational land holdings to register biodiversity gain sites and (for consideration) allow them to contribute in principle to the registered offsite biodiversity value attributable to another’s development.

Biodiversity credits can be used in place of onsite or offsite enhancements

It will be preferable for improvement works to take place on-site or offsite. To meet the biodiversity gain goal, developers will be allowed to purchase credits from Secretary of State.   Although it is not yet clear how this will work in practice (and is subject of arrangements yet to be made), the credit price will not be too high to discourage habitat improvements either onsite or offsite.

Comment

This Act was passed and a new environmental framework has been introduced. It is a significant milestone in the post-Brexit environment landscape. It is not yet legal, so it is unlikely that the necessary supporting regulations will be introduced.  The details of the biodiversity net gains regime and when they will be in force are not yet known.

It is important to not underestimate the complexity of the details required to bring the Act into effect, especially the requirements for biodiversity net gain.  Given the climate emergency, we expect that there will be political pressure to ensure that these requirements do not get forgotten. 

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