The Environment Bill: What’s next?

The Environment Bill 2019-20 has rightly been described as ‘landmark legislation’ but its speed of travel has been glacial. The Bill introduces a new domestic framework for environmental governance and makes provision on policy areas including waste, air quality, water, nature and biodiversity, and conservation covenants.

It was originally anticipated as passing into law in the summer of 2020 but is now likely to receive Royal Assent in Autumn 2021 with a two-year transition period envisaged, meaning formal implementation in Autumn 2023. What can we expect and when?

One of the key proposals in the Bill is to be trialled from July of this year. The non-statutory Interim Office for Environmental Protection, announced by DEFRA on the first of March, will provide independent oversight of the government’s environmental progress and accelerate the foundation of the full body.

The new Interim Office will:

  • Produce and publish an independent assessment of implementation progress regarding the government’s 25 Year Environment Plan
  • Develop the OEP’s strategy including its enforcement policy
  • Receive complaints from the public about public authorities’ alleged breaches of environmental law
  • Take decisions on operational matters
  • Determine how the OEP will form and operate.

The work of the Interim Office is vitally important because it will clarify whether there is any merit in the concern that the government will be ‘marking its own homework’ with respect to breaches of environmental policy and law.

The review of the 25 Year Environment Plan, settling of the IOEP strategy and the handling of complaints will all provide a useful means by which to scrutinise the resolve and effectiveness of this new body.

The new Biodiversity Net Gain requirement proposed under the Bill is one of the most revolutionary of the proposed changes.

Biodiversity Net Gains, set at 10% and measured by the Defra biodiversity metric, will be mandatory and will need to be maintained for at least 30 years. The BNG requirement will be imposed by way of statutory planning condition. The only exemptions from the requirement under the Bill are for permitted development, household extensions, NSIPs and marine development. The government consultation response to the BNG requirement under the Bill advised that NSIPs and marine development would not fall within the scope of the mandatory requirement under the Bill but that options for net gain approaches to these types of development will continue to be explored.

The list of exemptions could alter and is perhaps likely to increase: the Secretary of State will have powers to amend the type of developments which will be required to deliver net gain by way of regulations.

Much of the detail of BNG will be set out by way of regulations. For example, the Secretary of State will have powers to amend the 10% objective, and to set the procedure for approving a BNG plan and appealing a refusal to approve a plan. Regulations will also address the form of the BNG plan, and factors to be taken into account in deciding whether to approve it. Crucially, the question of whether individual permissions falling under the umbrella of an outline permission (i.e. phased permissions) will each have to provide an additional 10% gain, will also be addressed by way of regulations.

At present, the NPPF requires only that policies and decisions provide BNG and minimise impacts on biodiversity. Unless individual local plan policies require a specific net gain, then there is currently no policy basis for seeking anything other than a general net gain, not defined by reference to a specific percentage.

As the BNG condition is to be imposed by statute, there is an argument that it takes priority over conditions which rely solely on policy for justification. In determining applications, local authorities will have to weigh up policy considerations which will inevitably compete with the BNG requirement, the most obvious examples of which are viability and affordable housing. In some circumstances, delivering BNG will be very costly indeed.

What is the approach to BNG in circumstances where a local planning authority is determining a planning application which relies on a fall-back permission with a less attractive net gain position? A fall-back position has status as a material consideration when it is a real prospect (Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314). The weight to attach to a material consideration is a matter of planning judgement but there may be scope to argue that a fallback with a less attractive net gain position then the position advanced in the application should be afforded considerable weight in the context of a policy requirement for general net gain. This issue, however, falls away once the BNG site register is operational. If land is already registered on BNG site register, then its pre-development value is the enhanced value of the site, irrespective of whether BNG has already been delivered.

The recently published Dasgupta Review on The Economics of Biodiversity promotes transformative institutional and system change to engagement with nature. The Review asks that nature becomes a key consideration in economic and financial decision-making.

The Environment Bill is a cornerstone in the drive to reappreciate nature’s worth to society and its place within the planning system. The requirement for BNG and the formation of the Interim Office for Environmental Protection sit in an ambitious context.

Constanze practices in all areas of town and country planning law, including the specialist areas of compulsory purchase and highways. Her clients include developers, local planning authorities and local action groups. She regularly appears in inquiries as an advocate and is instructed to both bring and defend statutory challenges in the High Court. Constanze is ‘up and coming’ in the field of planning law (Chambers & Partners 2020). Constanze is one of the ‘Highest Rated Planning Juniors under 35’ according to the 2019 Planning Resource Planning Law survey.

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