The Environment Act sets out the UK’s post-Brexit take on environmental protection rules. It has been 3 years in the making and introduces important new requirements for planners and developers.
Biodiversity net gain requirement
The Act introduces a requirement to ensure that all new development will achieve ten per cent biodiversity net gain. This is a significant shift away from the current National Policy requirement to mitigate biodiversity impacts. A two-year transition period for this requirement is included in the Act, with provision for secondary legislation to set a date for the requirement to come into force. It is anticipated that the government will consult on the biodiversity net gain statutory instruments and regulations late 2021 and publish their response in the spring of 2022. It is therefore expected that the mandatory net gain requirements will be in place late 2023.
The ten per cent gain applies to the pre-development biodiversity of the ‘onsite habitat’. Developers will be required to do a baseline survey to establish the number of biodiversity units, and then, before planning permission is granted, submit a plan that demonstrates how they will replace what is being lost and evidence how a gain of at least ten per cent is delivered, either through the purchase of conservation credits or on-site provision.
The Act was strengthened as it moved through parliament to extend the biodiversity net gain requirement to nationally significant infrastructure projects, such as major energy developments. Only those developments that require their own legislation (such as HS2) are excluded.
Measuring biodiversity net gain
Defra have developed a biodiversity metric which produces a number, measured in biodiversity units, to quantify the level of biodiversity on a site. This metric is subject to Parliamentary approval, with the secretary of state being required by the Act to lay the metric before Parliament.
The biodiversity value of the development is the total of:
- the post-development biodiversity of the onsite habitat;
- the biodiversity value of any registered offsite gain allocated to the development; and
- the biodiversity value of any biodiversity credits purchase for the development.
Where a developer carries out activities before planning permission is granted which lower the biodiversity value of onsite habitat, the pre-development biodiversity value must be the value before those activities took place.
Under the Act, the government is required to set up a system of biodiversity credits which can be purchased prior to the development commencing where the net gain is delivered off-site. The price of these credits is to be set by the secretary of state at a level which does not discourage off-site enhancement and registration of biodiversity gain sites in the register.
One consideration for using biodiversity net gain as part of the government’s levelling up agenda is for each council to set up its own localised biodiversity credits scheme. This would allow individual local authorities to deliver net gain more strategically in accordance with their area’s specific needs, ensuring it benefits society as well as biodiversity.
Managing the site for 30 years
Where biodiversity gains are secured, they must be managed for at least 30 years in order to guarantee that the net gain will survive even once the developer has left the site. This is likely to be contracted with the developer through a section 106 planning agreement, and then delegated to a management company. Local authorities also have the option of setting up ‘conservation covenants’ that could endure for longer periods. This 30-year minimum duration can be reviewed and increased by the secretary of state.
Biodiversity gain site registers
Where a developer can ‘fit’ some of the biodiversity net gain requirement within the site boundary, this gain must be registered by the government. A publicly available “biodiversity gain site register” must be set up for each development site, which must be maintained for at least 30 years after the scheme has completed. The amount of land being entered onto new biodiversity gain site registers must be kept under review by the secretary of state.
Local Nature Recovery Strategies (LNRS)
LNRS are a new system of spatial strategies for nature that will cover the entirety of England intended to drive more coordinated, practical and focussed action to help nature. Each strategy will agree priorities for nature’s recovery, map the most valuable existing areas for nature, and map specific proposals for creating or improving habitat for nature and wider environmental goals with the aim of helping developers avoid the most valuable existing habitat. A ‘responsible authority’ will be appointed by the environment secretary to lead each LNRS area. This may include local authorities, national park authorities, city mayors and Natural England.
LNRS will also play a role in supporting biodiversity net gain, by guiding the provision of compensatory habitat delivered via the biodiversity net gain mechanism. The biodiversity metric includes a 15% uplift in units generated in locations proposed by the LNRS to encourage developers to focus on these places where the benefit will be greatest.
It is also intended that the strategies will have a broader role in the planning system, as an important source of evidence for local authorities to use in preparation for their local plans.
Species Conservation and Protected Site Strategies
The Act introduces a “species conservation strategy” to safeguard the future of particular species at greatest risk as well as a “protected site strategy” to safeguard protected sites. These strategies will be part of the LNRS, with the measures placing a new duty on planning authorities to cooperate with Natural England and other local planning authorities and public bodies in their establishment and operation.
Other key measures in the Act:
Legally binding principles are to be set by the secretary of state on air quality, water, resource efficiency and waste reduction.
Local authorities are given more power in tackling air quality.
Local authorities are required to produce a Biodiversity Report every five years.
The Habitats Regulations may be amended by the government.
Greater protection for trees is introduced, requiring local highway authorities to consult with communities before felling street trees, unless the trees qualify for certain exemptions. Fines for illegal felling are also increased, including up to unlimited fines.
A target to halt species decline by 2030 is introduced.
Conservation covenants have been formalised.
An overview of the most recent amendments introduced at the final stages of the Act’s legislative process can be found here.