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The Environment Act 2021

The Environment Act 2021, which received Royal Assent on 9 November 2021 following extensive debate in Parliament, introduces important requirements and changes for planners and developers, writes Ruth Keating.

This article does not address each aspect of the Act and chooses some key aspects of the Act to summarise namely: (i) the Office of Environmental Protection (“OEP”); (ii) scope of the Act’s provisions; (iii) targets: (iv) policy statement on environmental principles; (v) biodiversity net gain; and (vi) conservations covenants.

Summary of provisions

  • The OEP: Part 1 of, and Schedule 1 to, the Act establishes the new independent OEP to replace the functions of the European Commission and the European Environment Agency. Wednesday 17 November 2021 marked a significant day for the OEP which was, finally, legally formed. In terms of the remit of the OEP, there will be ongoing discussions with the devolved administrations. However, the OEP’s remit extends at this stage to England and Northern Ireland.
  • Some of the functions of the OEP will be to provide the Government with advice on any proposed changes to environmental law. Further, as those who have followed the Bill’s progress will be aware there has been debate surrounding the OEP’s enforcement powers and whether they had ‘real teeth’. In its final form the OEP has a range of mechanisms through which to enforce compliance – including information notices, decision notices, environmental review and judicial review.
  • It is worth flagging that one future area to watch is the extent to which the OEP avoids any overlap with the Committee on Climate Change. The Committee on Climate Change has advisory and reporting roles – however, it has no enforcement role under the Climate Change Act 2008. This will be one obvious area where overlap can be avoided. However, in the years to come it will be interesting to see whether there is any risk of overlap developing.
  • Finally, one of the key changes introduced to the Bill in its final stages was that the Secretary of State can issue guidance to the OEP on enforcement policy and exercising its enforcement policy (as per section 25). Given, the concerns which have been expressed regarding the OEP’s perceived and actual independence there were concerns that this could be perceived as an encroachment on the OEP’s exercise of discretion.
  • Scope of the Act’s provisions: The majority of the provisions of the Act form part of the law of England and Wales, but apply to England only. Approximately half of the Act’s provisions apply to Wales and of course a significant number of provisions extend to all of the UK.
  • Targets: Section 1 of the Act provides that the Secretary of State must set long-term environmental targets (at least 15 year) by regulations in each of four priority areas, namely: (i) Air quality. (ii) Water. (iii) Biodiversity. (iv) Resource efficiency and waste reduction. Similarly, as per section 2 of the Act the Secretary of State must by regulations set a target in respect of the annual mean level of PM2.5 in ambient air. As per section 4, draft legislation must be laid before Parliament by 31 October 2022.
  • The Secretary of State must also set a species abundance target by regulations. However, a longer deadline is provided for the species abundance target with a specified date of 31 December 2030 (as per section 3(2)).
  • Policy statement on environmental principles: The Secretary of State must prepare a policy statement on environmental principles in accordance with section 17 and 18 of the Act. As per section 17(5) the “environmental principles” mean the following principle: (a) the principle that environmental protection should be integrated into the making of policies; (b) the principle of preventative action to avert environmental damage; (c) the precautionary principle, so far as relating to the environment; (d) the principle that environmental damage should as a priority be rectified at source; and (e) the polluter pays principle.
  • As per section 19(1), Ministers of the Crown must when making policy, have “due regard” to the policy statement on environmental principles currently in effect. Previously in draft form this only to a requirement to have “regard”. However, notably the language of have “due regard” to is relatively undefined and does not, arguably, impose a very high threshold on Ministers. There are further limitations on the force of this requirement. Notably, as per section 19(3) section 19(1) does not apply to policy so far as relating to: (a) the armed forces, defence or national security: (b) taxation, spending or the allocation of resources within government; or (c) Wales.
  • It will be interesting to see how these principles develop in practice. For example, the UK-EU trade and co-operation agreement includes “level playing field” commitments to prevent either party seeking a competitive edge in various regulatory areas including the environment and climate change. This includes not regressing on the levels of environment and climate protection in place at the end of the transition period (Article 7.2 of Chapter seven, Title XI of Heading One of Part Two).
  • Biodiversity net gain: Part 6 of the Act sets out the much anticipated provisions for planners on the new 10% biodiversity net gain requirement. In essence, this imposes a new condition on all planning permissions in England that a biodiversity gain plan must be submitted and approved before development can commence (as per section 98 and Schedule 14 of the Act).
  • In terms of details, as per section 100 the Secretary of State may by regulations make provision for and in relation to a register of biodiversity gain sites. This will be relevant for those sites where on site biodiversity net gain is not possible. Further, for those sites where on site biodiversity net gain is not possible section 101 makes provision for biodiversity credits whereby pursuant to section 101 the “Secretary of State may make arrangements under which a person who is entitled to carry out the development of any land may purchase a credit from the Secretary of State for the purpose of meeting the biodiversity gain objective”.
  • Finally, as per section 102 the general duty of public authorities to have regard for the conservation of biodiversity under the Natural Environment and Rural Communities 2006 is extended to both conserving and “enhancing” the biodiversity objective.
  • Conservation covenants: Part 7 of the Act provides for the introduction of conservation covenants. As per section 117, a conservation covenant “is an agreement between a landowner and a responsible body where— (a) the agreement contains provision which— (i) is of a qualifying kind, (ii) has a conservation purpose, and (iii) is intended by the parties to be for the public good”. To be of a qualifying kind a conservation covenant must: require a landowner to do, or not to do, something on land in England specified in the provision in relation to which the landowner holds a qualifying estate specified in the agreement for the purposes of the provision; allow the responsible body to do something on such land; or require the responsible body to do something on such land. A landowner, for the purposes of the provisions, must hold a ‘qualifying estate’ in land i.e. freehold or a leasehold granted for a fixed term of more than 7 years (and that term has not expired).
  • In terms of the period for which the conservation covenant applies, unless the parties agree to a shorter period, an obligation under a conservation covenant has effect for the ‘default period’ which is: (i) indefinitely where the relevant qualifying estate is freehold; or (ii) where the qualifying estate is leasehold the remainder of the term. The purpose, therefore, of conversation covenants is to conserve the natural environment and heritage assets for the public good and to ensure these benefits can be maintained in the long-term. Importantly, therefore, conservation covenants bind successors in title and so this prevents the conservation covenant having no effect if the land is sold or passed on.
  • Sections 124-126 of the Act deal with breach and enforcement of conservation covenants and specify that in proceedings for enforcement of a conservation covenant the available remedies are: (a) specific performance; (b) injunction; (c) damages; and (d) order for payment of an amount due under the obligation. Schedule 18 sets out requirements relating to the discharge or modification of obligations under conservation covenants. Therefore, it is intended that conversation covenants will allow a certain degree of flexibility where needed. However, the tone is very much to ensure that conservation covenants are protected in the long term and that they offer meaningful protection by having a number of enforceable remedies.

Concluding remarks

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There was disagreement, to the end, on some of the proposed amendments to the Bill. Notably this included proposed Amendment 1 [1] which was rejected outright. This amendment proposed that a clause be inserted which would explicitly state that the “purpose of this Act is to address the biodiversity and climate emergency domestically and globally”. It is reflective of the tone of some of the final provisions of the Act that nothing to this effect was included and some have criticised the Act as lacking ambition.

However, there is still some scope for ambition. The purpose of much of the Act is to enable future regulations and policymaking. As is clear from the above, there is still much clarity that is needed around some of the fundamental aspects of the Act – not least the target provisions. In terms of air quality and PM2.5 it is only relatively recently, in December 2020, that the inquest into Ella Adoo Kissi-Debrah’s death concluded that she died of asthma contributed to by exposure to excessive air pollution. In November 2020, the government’s independent Air Quality Expert Group launched a call for evidence on modelling PM2.5 concentrations in England and this work will inform the modelling process for developing the new PM2.5 concentration target and long-term air quality target. It is hoped that over the coming weeks and months ambitious and meaningful targets are set.

Much of the success of the Act will lie in landowners and policymakers understanding its provisions. For example, the biodiversity net gain requirements and provisions on conservation covenants provide a basis for optimism. If the provisions are used creatively and effectively, they will change the legal environmental and planning landscape for the better.

Ruth Keating is a barrister at 39 Essex Chambers.

[1] Reasons for rejecting the amendments were provided to the Lords: https://bills.parliament.uk/publications/43109/documents/802

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