The Environment Act 2021, which received royal assent on 9 November, is a major new piece of legislation which is likely to have significant impacts in the realm of planning.
Whilst none of the relevant sections of the Act are currently in force, they are likely to be brought into effect in the coming year as the necessary regulations are put in place. The following is a brief summary of the main effects for parties involved in planning.
The perspective for developers and landowners
The Act amends the Town and Country Planning Act 1990 so that (subject to any transitional provisions contained in regulations) all planning permissions granted after the provisions come into force are deemed to be subject to a condition prohibiting the start of development before a biodiversity gain plan has been submitted to and approved by the Local Planning Authority (LPA). The biodiversity gain plan must demonstrate a net gain of at least 10% in the biodiversity value of the development site “as at the time the development is completed”.
Biodiversity is assessed applying metrics published by the Secretary of State. The net gain is achieved either by an improvement in the on-site biodiversity, by improving the biodiversity of a specific piece of off-site land, or by purchasing bio-diversity credits (a credit scheme yet to be set up by the Secretary of State). Any on-site or off-site biodiversity increase must be secured for 30 years, either by a planning condition, planning obligation, or a ‘conservation covenant’ (a restrictive covenant affecting the relevant land which is enforceable by a designated body). A register of biodiversity gain sites will be established, presumably for each LPA area, and will doubtless be accessible on Local Authority websites.
The detailed requirements of the biodiversity gain plan will be set out in regulations that have yet to be published, but in any event the plan will need to include an assessment of the pre-development biodiversity of the site to establish a baseline for the assessment.
The obvious impacts of the biodiversity net gain (BNG) duty include:
- An additional cost to developers in providing and thereafter maintaining the BNG;
- Where the BNG is secured on-site, it will reduce the land available for development and recreational use with potential adverse impacts on viability;
- It will be easier to demonstrate the BNG on biodiversity-poor land and harder to demonstrate on already biodiverse sites, potentially increasing the attractiveness of brownfield land;
- Anti-avoidance measures mean that works carried out since 20 January 2020 and which ‘dumb-down’ the biodiversity value of a site before submitting a planning permission must be disregarded in the assessment of the site’s pre-development baseline biodiversity value.
- Demonstrating the BNG “as at the time the development is completed” as opposed to when planting etc becomes mature is likely to be difficult and may further increase costs.
Landowners with sites that are not appropriate for development but with low biodiversity values are likely to be courted by developers looking to meet their BNG obligations off-site, creating a new market in conservation covenant sites.
The BNG obligation increases the costs burden to LPAs of determining planning applications and monitoring developments without any clarity as to how that will be funded. At the same time, and as owners of public land, off-site BNG may offer a lucrative new income stream to Local Authorities support in rewilding of parts of city parks, as well as of other public land which is not suitable for development.
The perspective for public authorities
The Act amends section 40 of the Natural Environment and Rural Communities Act 2006 (which currently requires public authorities to “have regard to the purpose of conserving biodiversity” whenever exercising any function), replacing it with a duty “from time to time” to consider what action the Authority can properly take to further the conservation and enhancement of biodiversity (the ‘Biodiversity Objective’). That consideration must take place within one year of the new duty coming into force and unless there is nothing more to be done, it triggers a duty to prepare policies and objectives (having regard to any relevant nature recovery strategy (see below)), and then to act on them.
Associated with this amended duty, the Act imposes a new duty on Local Authorities (and LPAs in particular) to prepare five-yearly Biodiversity Reports, setting out what action the Authority has taken over the period to promote the Biodiversity Objective (including reporting on any BNG from developments approved during the period), as well as its proposals for the following 5-year period. The first such report must be produced within three years of the duty coming into effect.
The Act also introduces Local Nature Recovery Strategies (LNRSs), Species Conservation Strategies (SCSs) and Protected Site Strategies (PSSs) (i.e. a strategy relating to a European Site, an SSSI or a marine conservation zone).
LNRSs are a new system of spatial strategies for nature, covering the whole of England. The Environment Secretary will appoint a ‘responsible authority’ to lead each LNRS area, which could include LPAs and which in mayoral combined authorities is highly likely to be the mayor. The responsible Authority must map the most valuable existing natural habitat in its area and develop a biodiversity strategy, including specific proposals for creating or improving habitats and priorities for nature recovery.
LPAs will also be required to have regard to any relevant SCS in exercising any function, and to any relevant PSS when discharging its duties under the Conservation of Habitats and Species Regulations 2017. Both the SCS and PCS will very much do “what they say on the tin”, i.e. they will include priorities and measures for improving the conservation status of relevant species / the conservation and management of a protected site all within the LPA’s area.
These innovations represent a potentially significant additional workload for LPAs, not all of which have in-house ecologists, and in any event, whose capacity and funding is already constrained. Hopefully, this cost will be covered when and if the government overhauls the current system for funding infrastructure as promised in the 2020 planning white paper.
The Office for Environmental Protection – an additional risk?
The Act also creates a new Office for Environmental Protection (the OEP) with a wide-ranging brief, including supervising the discharge of environmental duties by the government and other public authorities. This includes powers to investigate alleged breaches of environmental law by public bodies, to issue its own non-binding rulings on alleged breaches and (in effect) to apply to enforce that ruling through the Courts by way of an ‘Environmental Review’.
Environmental Reviews are not subject to the usual 6-week deadlines for starting planning judicial reviews. However, where the complaint is upheld, the issues are sufficiently serious, and where the Court decides that ‘exceptional’ public interest favours more forceful action, the usual judicial remedies (including quashing orders) are available. This raises the prospect that environmentally contentious planning decisions can be investigated by the OEP, challenged and potentially quashed by a Court substantially after the date of the original decision. Such an outcome is likely to be very rare, but it does potentially increase uncertainty for developers of particularly environmentally contentious schemes.
All in all, the Environment Act 2021 heralds wide-ranging reforms which will impact planning and development in a variety of ways and increase the costs to all parties. As a quid pro quo, it will hopefully also result in more environmentally positive outcomes.
If you require advice on any of the matters covered in this article or on any aspect of the Environment Act 2021 then please get in contact with our Planning team.
