Environment Act finally gets Royal Assent: though new requirements on development are yet to bite

The government’s ambitious Environment Bill first surfaced in 2018, and despite numerous delays, debates, the impact of COVID-19, and last minute amendments, on 9 November 2021 it was given Royal Assent, becoming the Environment Act 2021. Containing 149 sections, and 21 Schedules, the Act covers a significant number of issues associated with environmental protection and conservation.  We highlight below some of the main new elements, and in particular those which will directly impact on new development within England.

Environmental Principles

The government must prepare a new policy statement placing a duty on ministers to take account of five environmental principles when making policy: the principle of integration, the prevention principle, the precautionary principle, the rectification at source principle,  and the polluter pays principle. The timetable for laying the draft policy before Parliament is somewhat unclear as further regulations are needed to bring the relevant provisions into force which then triggers a 4 month deadline.

Office for Environmental Protection (OEP)

The Act provides the legal basis for a new independent body tasked to contribute towards environmental protection and the improvement of the natural environment. Legally formed on 17 November, the OEP’s own website states it will ‘protect and improve the environment by holding government and public authorities to account against their commitments and environmental law’. Once fully formed (expected in 2022), the OEP will not only take on a monitoring and advisory role, but is tasked to investigate suspected non-compliance of environmental law by government and other public bodies and will have enforcement powers to ensure compliance.

Binding Targets

The Act enables the government to prepare regulations to set long-term environmental targets, with positive obligations to set such targets for four priority areas: air quality (including a particulate matter target); water; biodiversity; and resource efficiency and waste reduction. The drafts for such regulations must be prepared before 31 October 2022, and with targets of not less 15 years. Once in place, there are further reporting and reviewing obligations, with the first such review to take place by 31 January 2023.

Biodiversity Net Gain (BNG)

The recently revised National Planning Policy Framework (NPPF) supports existing national policy which states that planning and development should provide biodiversity net gain (BNG) where possible. Under the Act, and once in force, all new developments will be legally required to demonstrate a 10% BNG, and this must be managed for at least 30 years. In one of the more recent amendments to the bill, this now extends to nationally significant infrastructure projects granted under the Planning Act 2008. For every new planning permission, a condition is to be imposed preventing commencement of the development until the BNG plan has been submitted to and approved by the relevant local planning authority. It is anticipated that the regulations will provide more detail about how such arrangements will apply to outline and hybrid permissions and to section 73 minor material amendments. A number of local authorities had already included BNG requirements in their own local policies. Some adaptation may be needed to take account of the new statutory provisions as they come into force, and while compliance will likely become more onerous as the arrangements are formalised, BNG credits may prove helpful. .

A public register will be established for land where BNG is being secured, and this too must be maintained for the minimum 30 year period.

The Secretary of State is obliged to keep both the register and the 30 year minimum period under review (with the ability to increase rather than decrease such duration). Provisions are included for a potential scheme of biodiversity credits.

Conservation Covenants

Conservation covenants will for the first time have statutory status. These agreements between landowners and the relevant public authority are intended to secure specific requirements on the landowner for the purpose of conservation of land and natural resources, and specific historical or archaeological interests and their setting.

Once entered into, conservation covenants become a local land charge, and they remain in effect indefinitely against freehold interests or the full duration of any leasehold interest unless expressly stated otherwise. Breaches can be addressed through various remedies including specific performance, injunction or damages/payments, and there are only limited defences against such breaches. Modifications can be made by agreement, with additional provisions through applications to the Upper Tribunal.

Other powers and possible regulations

The Act covers a number of other areas, including provisions relating to water resources, sewage and storm overflows, and regarding protection of trees. In addition, from January 2022, the Act enables various devolved authorities to establish regulations including for charges on single-use plastics, producer responsibility obligations (including payment for disposal), resource efficiency requirements, further carrier bag charges, and electronic waste tracking.

Looking ahead

We can expect draft regulations to start appearing in the coming months for the implementation of both BNG and formalised conservation covenants. There is also likely to be much publicity and debate over the various targets to be set in advance of the draft regulations being presented next October. In essence, there is more information and detail to follow as the objectives in the Act start to take shape, and there will remain scope to consider and respond to help shape these.

Authored by Robert Gowing.