Delayed Environment Bill To Return Autumn 2021

After significant delay following the 2019 election and the COVID-19 pandemic, the latest estimates suggest the Environment Bill will become law this autumn. Sophie Willis outlines the key provisions within the Bill relating to development planning.

The majority of environmental law in the UK derives from EU legislation. As the UK has left the EU and transitional arrangements ceased on 1 January 2021, the Bill amends existing legislation and introduces new measures on environmental policy within the UK. Much environmental legislation is devolved – this note considers the application of the Bill in England only.

Biodiversity Net Gain

Developers will have to deliver a 10% net biodiversity gain in new schemes, guaranteed for at least 30 years. This statutory requirement is significantly more stringent that the existing position under the NPPF, which requires planning policy and decisions to enhance the environment by minimising impacts on and providing net gains for biodiversity.

There are exemptions to the 10% biodiversity net gain standard including householder applications, permitted development and specific exemptions for certain brownfield sites. It is expected that the detail of these will be set out fully in secondary legislation.

Developers will have to submit biodiversity gain plans alongside planning applications, setting out the biodiversity value of existing onsite habitats, steps to minimise adverse effects and how any “net gain” will be achieved. Biodiversity gain will be measured using Defra’s biodiversity metric which assesses habitat in relation to wildlife, condition and size. The legislation imposes a pre-commencement condition whereby development may not commence until a biodiversity gain plan has been submitted to and approved by the local authority.

The preference is for development which does not require mitigation, followed by development that involves on-site or off-site mitigation, with compensation (in the form of purchasing biodiversity credits) being a last resort. Works that increase biodiversity value on-site will be secured by condition, planning obligation or a conservation covenant requiring that the mitigation is maintained for at least 30 years after completion.

Developers should note that impacts on biodiversity are already under closer scrutiny ahead of the Bill taking effect. The need to grapple with net gain and the impact on future land maintenance and value needs to be considered, alongside the availability of off-site mitigation and credit opportunities where appropriate. Many are already looking at the potential for their land to help unlock development by provision of habitat banks.

Local Nature Recovery Strategies

Councils will be required to produce local nature recovery strategies, a statement of biodiversity priorities for the strategy area and a local habitat map showing the existing nature assets (protected sites, wildlife-rich habitats etc) and identify key opportunities for enhancement.

Amendments to the Bill have also included requirements for species conservation strategies (policies to help the conservation of a particular species in a given area) and protected site strategies (for their conservation and management). Both documents would be prepared by Natural England and feed into the local nature recovery strategies. Protected site strategies should include strategic mitigation / compensation, such as nitrate credit trading to allow for housing in the Solent.

The detailed requirements of these strategies will affect the nature of the mitigation required to be undertaken by developers as part of the planning process.

Office for Environmental Protection

The Bill establishes a new public body called the Office for Environmental Protection (OEP) to regulate the UK’s environment following the departure from the EU. The Government initially indicated that this body was to be independent, however there is scope for the environment secretary to issue statutory guidance to the OEP. The OEP will be responsible for enforcing the provisions of the Bill, however it will fall to local authorities in the first instance to ensure that developers and landowners are complying with their obligations.

What happens next?

The Bill is scheduled for further consideration in the House of Commons before going to the House of Lords for further debate. Assuming the Bill is passed into law this year, the formal regime is not expected to take effect until 2023 due to the need for secondary legislation.

For more information, please contact Sophie Willis or your usual Charles Russell Speechlys contact in our Real Estate Planning team.