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