ENVIRONMENT ACT 2021

Having retired from legal practice, the first thing I did after that was to go and chair a planning law seminar in London last week, at the invitation of Bath Publishing. The subject was Biodiversity for Planners & Developers: The New Law. This very successful conference (which was held both as a live event and online) was an excellent introduction to the important changes in planning procedure that will be brought about by the recently passed Environment Act, which obtained Royal Assent on 9 November.

The provisions of the Act will be phased in gradually, and it will be some two years before the important changes that will govern how developers structure and present planning applications, but it is abundantly clear that everyone involved in planning and development is going to have to get thoroughly to grips with these changes in good time before they become a binding statutory requirement.

Perhaps the most important aspect of the Act (and which was the focus of last week’s seminar) will be the requirement to demonstrate how significant biodiversity net gain [“BNG”] will be achieved through the proposed development. There is, of course, a lot more in that Act than this, and I do not for one moment belittle the importance of other parts of the Act, which aim to improve the natural environment and will set up the Office for Environmental Protection as an independent monitoring body and regulator. Other parts of the Act deal with waste and resource efficiency (including waste management and enforcement) and air and water quality (including the regulation of water and sewerage undertakers).

But it is Part 6 of the Act, dealing with nature and biodiversity, and the requirement for biodiversity in planning, which strikes me as the part of the Act which it will be most important for planning professionals to understand. Coupled with this will be the introduction of conservation covenants, which are dealt with in Part 7 of the Act.

Three extremely interesting and helpful papers were presented at our seminar last week, by Alistair Mills, of Landmark Chambers, who is a Fellow of Magdelene College, Cambridge and a law lecturer at that college, as well as being a contributor to Garner’s Environmental Law among his other writing credits (giving us a general overview of the new Act), followed by Dr Nick White, Principal Adviser on Net Gain at Natural England, who has been intimately involved in developing the concept of BNG and successive iterations of Natural England’s Biodiversity Metric, which will become a legally sanctioned tool under the Act, and finally Tom Graham, barrister, legal author and a very experienced planning lawyer, whose paper addressed the practical considerations for planning and development that arise from the new Act. The event was rounded off by a lively Q&A session which threw up some interesting and thought-provoking points.

At present, only a few of the Act’s numerous provisions are in force (out of a total of 149 sections and no fewer than 21 detailed schedules). They are sections 22 to 24, 26, 44 to 47, 63, 142 to 149 and Schedule 1. On 9 January, sections 51 to 56, 58, 66, 70, 80, 88, 89, 90, 92, 93, 97 and Schedules 5, 6, 7, 8, 9 and 10 will come into force. Other provisions of the Act will be brought into force by future Commencement Orders. There is also going to be a huge raft of subordinate legislation, none of which has been published yet (unless, unbeknown to me, anything has appeared in the past few days). The NPPF will also have to be revised again to reflect the new regulatory regime.

Nick White stressed the fundamental importance of the Biodiversity Metric to net gain. The Metric calculates the baseline and forecasts outcomes. It is intended to provide confidence in its methodology and ensure consistency of approach. It was clear from Nick’s paper that considerable work has been done within Natural England in developing the Biodiversity Metric as a robust and reliable tool for ensuring the achievement of BNG. The Metric applies the core principles of BNG, i.e. that it secures additionality and does not countenance trading down of biodiversity. The resulting tool (currently version 3.0, to be replaced in January 2022 by version 3.1, incorporating minor changes, and accompanied by the publication of supporting case studies) is extremely sophisticated; its calculation tool and condition assessment are supplemented by both a User Guide and a Technical Supplement. Next year the Secretary of State is expected to consult formally on the Biodiversity Metric, followed by the publication of Metric 4, the final pre-mandatory BNG version before it becomes a statutory requirement, following which it will be reviewed every 5 years or so.

Some of the larger housing developers are already familiar with BNG, and have test flown their own biodiversity metrics. Similarly, a number of LPAs have developed BNG as a development management tool. Now this is all to be put on a statutory basis, and Natural England’s official Metric will become the sole benchmark, with which all developers and LPAs must comply. Present expectations are that this will come into force in about two years’ time.

Tom Graham’s paper also stressed the Biodiversity Net Gain objective and the mitigation hierarchy, drawing attention to the scope for purchasing biodiversity conservation credits. There will in future have to be a biodiversity gain plan and, overall, the biodiversity gain objective must be achieved. There remains at present, however, a degree of doubt as to the practical means by which this is to be secured. One limitation of the Biodversity Metric (which Nick White also flagged up in his talk) is that it measures habitats, rather than species as such, although it could be said that habitats are in effect a proxy for the species they support.

There is still some uncertainty as to the mechanisms by which all this is to be secured on individual sites. A Construction Environmental Management Plan (aka CEMP), a Landscape & Ecological Management Plan (aka LEMP) and species specific measures will ned to be part of the package. Tom expressed misgivings about the suitability of planning conditions to secure BNG, which may not be an adequate mechanism to deal with changes to the Biodiversity Gain Plan or to guarantee the enforceability of these requirements. Offset or land transfers may be alternative mechanisms, but would require a legally binding agreement to secure them (although a Grampian condition might be a useful first step towards this). The same would apply to financial contributions. Even a planning obligation carries with it some risk as to whether the developer is capable of delivery, and as to maintenance mechanisms and long term financial security. (What happens, for instance, if the management company goes bust? My own answer to this would be for the developer to provide a bond, backed by a substantial financial institution). There are also questions as to the suitability of a 106 agreement, compared with a conservation covenant agreement.

Many of these points will no doubt become clear in time, and will be refined and perfected as practical experience is gained in the operation of these provisions and procedures. In the meantime, however, the final message of Tom Graham’s paper, and of the whole seminar, was to emphasise the crucial importance of familiarisation and training of personnel at all levels, for developers, their staff and their professional advisers, as well as local planning authority staff. Two years is not as long as it may seem in which to get to grips with the new regulatory regime.

Next year, we shall all have the assistance of Tom Graham’s new book - The Environment Act 2021 – A Guide for Planners and Developers to guide us through the new legislation. If the government had not taken such an inordinate time to get its legislation through parliament, Tom’s book would have been published by now. Last week’s seminar had originally been planned as a launch event for the book, and it is no fault of either Tom or Bath Publishing that the book has been delayed. Late changes to the legislation, right up to the last minute, have made re-writes of some chapters unavoidable, but I have seen the manuscript and it is already at an advanced stage of preparation. So readers can pre-order the book, confident in the expectation that it will prove to be an essential companion in navigating around this legislation, with sound practical advice on the day-to-day operation of the statutory procedures.

© MARTIN H GOODALL

Winding down

After some 44 years in practice as a solicitor, during nearly the whole of which I have specialised in the law and practice of Town and Country Planning, not to mention the years that I spent in the profession before being admitted as a solicitor, I have finally decided that it is high time that I retired. Planning law is an area of work that I have always enjoyed, and it was for this reason that I carried on for some considerable time after what most people would think of as a ‘normal’ retirement age. But none of us can go on for ever, and so I have finally hung up my metaphorical wig. (As you are no doubt aware, solicitors don’t actually wear a wig, but I did do a great deal of heavy-weight advocacy at planning inquiries, and long ago lost count of the number of public inquiries and hearings in which I had appeared.)

I first opened the pages of the Planning Encyclopedia as long ago as 1967, if only for the purpose of filing new loose-leaf pages, and I drafted my first notice of appeal (on behalf of my principal) in 1970. It was addressed to the Minister of Housing and Local Government (just a few months before Ted Heath created the Department of the Environment as a new ‘super-department’), as well as drafting some written representations in a couple of planning appeals.

It took me a lot longer to qualify as a solicitor than it should have done, due to my having got involved in politics, which proved to be a considerable distraction. However, I realised that I really did have to concentrate on the two papers in the solicitors’ finals that I had repeatedly failed – Revenue Law and Equity & Succession. I really don’t know how I eventually managed to get through these two papers; the Rule in Earl of Chesterfield’s Trusts and the doctrine of election are as much a mystery to me now as they ever were. Just as well, then, that my interest even at that time was focused on town and country planning, and that I took the opportunity of pursuing this as my career.

I gave up politics ‘temporarily’ in order to concentrate on my finals, but I never went back to politics. I have never lost my interest in the subject, but purely as a spectator and commentator. If I am asked what alternative career I would like to have pursued, it would have been as a political journalist. (I fear that this may have been all too obvious at times from the contents of this blog.)

To echo the words of Theresa May, I have decided that “Retirement means Retirement”, and so I am not tempted to continue in some sort of consultancy role. However, I shall not be closing this blog, but now that I have retired from active legal practice, posts are likely to appear rather less frequently in future. In fact, you may already have noticed a reduction in the number and frequency of posts. But I am sure that I shall be unable to resist commenting on planning topics from time to time, and I have no intention of taking down my previous posts, which will remain available to be read by anyone who’s interested.

And then of course there are also my two books (A Practical Guide to Permitted Changes of Use and The Essential Guide to the Use of Land and Buildings under the Planning Acts). Both of these will clearly require new editions in due course.

So maybe I shan’t be riding off into the sunset just yet.

© MARTIN H GOODALL

Biodiversity book and seminar

As you know, I am a great fan of Bath Publishing, who continue to expand their planning and environment law list, in addition to the other areas of the law that they cover.

Tom Graham is a practising lawyer with many years of experience in environment and planning law, and is an established legal author whose book, A Practical Guide to Planning, Highways and Development is a ‘must have’ title from Bath Publishing’s catalogue. Bath Publishing will shortly be launching Tom’s latest book, The Environment Act 2021: A Guide for Planners and Developers. This book could hardly be more topical, and will be published almost before the ink has had time to dry on the new Act. So it will be one of the first books available to provide a comprehensive overview of the Act specifically for the planning sector.

This new book answers the questions that planners and advisers will need to consider such as:

• The interpretation of the Environment Act
• Conservation biology and the planning system
• What is Biodiversity Net Gain and how will it interact with the planning system?
• What is the "precautionary principle" and how is this to be reflected in the planning process?
• Can local planning authorities push a "green agenda"?
• Section 106 agreements, conservation covenants, planning conditions and ecology
• How will local planning committees get to grips with the complexities of the Act?
• How will the act impact on developers? Is it a benefit or a problem?

As well as practical commentary, the book includes the relevant sections of the Act, annotated by the author, so you will have the sources you need in one, handy volume. Due for publication shortly after Royal Assent is granted in the Autumn, it will be the essential, practical guide to help navigate the new regime efficiently and profitably.

• Paperback
• 200 pages approx
• £40 inc free digital edition if you pre-order
• ISBN 978-1-9163023-1-0

In order to launch this important new book, Bath Publishing have organised a seminar in London later this month, which will also be available online.

Attend the seminar and get the book free! This seminar, Biodiversity for Planners & Developers: The New Law, is being held on Thursday 25 November 2021. You can attend in person or online and you'll get a free book as part of the package. The event is being held at One Great George Street, London SW1P 3AA between 10am and 1pm, and I am honoured to have been invited to chair this event. The speakers will be Tom Graham, Dr Nick White and Alistair Mills, all of whom are experts in this area of law and practice.

As a special offer to readers of this blog, the ‘early bird’ offer for seminar bookings, giving you access to the seminar (with book included) of £150 + VAT has been extended to 12 November 2021. (The price will be £175 + VAT if booked after 12 November). So readers of this blog have just one week to snap up this generous offer, and save £25! [To get this discount, you will need to quote this code: BDMG1121 ]

I should mention that the availability of 'in-person' tickets is now limited (due to a rapid take-up of bookings). There is a need to keep the numbers fairly limited in order to minimise covid risks, so far as possible. Bath Publishing is offering everyone the option to swap to remote attendance if preferred.

UPDATE (17 November) : As readers are no doubt aware, it took the government until 9 November to get the Environment Bill through its final stages in parliament, and it became the Environment Act 2021 on that day. Tom Graham's book is now at an advanced stage of preparation, but it could not be finalised until after Royal Assent had been achieved (because important changes to the Bill were in the offing right up to the last minute). So, through no fault of Tom's, the book will not be ready as soon as everyone had hoped. The seminar on 25 November will nevertheless be a valuable opportunity to learn about the new Act and the way it will affect the way we do development in future. Attendees will, of course, be entitled to a copy of the book when it is published, and in the meantime they will find the seminar very helpful as a timely introduction to this important new legislation.

MARTIN H GOODALL