Biodiversity net gain

Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)

My last two blog posts have been on the huge and urgent challenge arising for the English planning system arising from the advice being given by Natural England in relation to potential effects on special areas of conservation and special protection areas (see my 18 March 2022 blog post New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper) and my 26 March 2022 blog post More On That Natural England Advice). We also held a clubhouse discussion on 29 March 2022 and you can listen back here.

Undoubtedly, the environmental protection and assessment system that has developed pursuant to European Union Directives and caselaw of the European Court of Justice is ripe for review now that we are no longer in the EU. It is complicated, uncertain and its tests can lead to wide repercussions, as we have seen with the “neutralities” issues the subject of Natural England’s advice. It was no surprise that the Government has been trumpeting for years (literally years) the opportunity to review the system post Brexit.

This was Environment minister George Eustice in his 20 July 2020 speech on environmental recovery:

“Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.

We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”

“Later this Autumn”, my foot!! Only last month was the Nature Recovery Green Paper finally published, for consultation from 16 March to 11 May 2022. This was finally the opportunity to grasp the nettle.

I have read the paper several times now, together with the summary of findings of the HRA review working group comprising DEFRA ministers Lord Benyon and Rebecca Pow, Tony Juniper (Natural England chair) and Christopher Katkowski QC that was published alongside the green paper. I’m afraid I do not see any nettles grasped but rather far too much about how to assimilate the nomenclature and classification of EU designations (special areas of conservation and special protection areas) into our domestic regime and general aspirations for a system that is simpler and clearer without any ideas as to how to make it, in practice, simpler or more clear. How do we actually address these nutrient neutrality issues for instance and avoid any more applications via Natural England advice of an emergency hand-brake on the operation of the planning system?

I make the point forcefully because there is a risk that we all see this as complicated, long-term, expert-driven and ultimately one for the academics and planoraks, whereas it is vital stuff if we are to achieve a functioning planning system alongside a system of environmental protection and recovery that is fit for purpose (or at least as good as the EU system of which we are no longer part).

My Town Legal colleague Stephanie Bruce-Smith has summarised chapter 3 of the green paper in a piece which I set out at the foot of this post without amendment – and for which I take the responsibility (but not the credit). Chapter 3 is the meat of the proposals and Stephanie’s piece, which I think is great and I hope you do too, will give you a good sense of the Government’s thinking.

We are going to be discussing the green paper in a clubhouse session this week – at a changed time and date so please mark it in your calendars – 5.30 to 6.45 pm on Monday 4 April. Our main speakers will be Victoria Hutton (39 Essex chambers) (who has published this great summary on LinkedIn), Andrew Baker (Baker Consultants) and Stephanie Bruce-Smith (Town Legal). Event details here.

Simon Ricketts, 2 April 2022

Personal views, et cetera

Stephanie’s piece:

Nature recovery green paper: protected sites and species

Introduction

On 16 March 2022 DEFRA published its Nature Recovery green paper. The green paper opens by identifying two main problems. The first is the degradation and/or loss in habitats and species over the last 50 years. This problem is cited as a key reason for a renewed emphasis on nature’s recovery, rather than conservation, which has hitherto been the focus of nature protection regimes. The second problem identified is the complexity of the existing environmental regulatory landscape for protected sites and species. It references the overlapping site designations as a significant issue, noting how over 80% of Sites of Special Scientific Interest (SSSIs) by area are also designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). This overlap is said to be problematic in two main ways:

(i) It distracts from the ability to focus resources strategically or holistically on actions on-site and pressures off site in a way that best delivers for nature, and

(ii) Very few members of the public are likely to know what these terms mean, or why these sites are worth protecting, which is crucial to public engagement with and support for this work.

There is therefore a wish to “simplify and streamline environmental regulation, with a focus on delivering legally binding targets now enshrined in the Environment Act”. The paper also includes two further aims: moving towards a system where scientific judgment has a greater role (“rather than action being led solely by legal process”); and greater flexibility and accountability given to those delivering policy on the ground, to enable a more joined up response to the specific circumstances of particular sites and areas. In summary, the five main aims of the reform are:

1. Renewed emphasis on, and designation for, nature’s recovery;

2. Simplification and streamlining of environmental regulations;

3. Delivery of environmental targets or outcomes;

4. A greater role for scientific judgement; and

5. Increased flexibility and site-specific policy delivery.

The green paper builds on the findings of the Habitats Regulations Assessment Review Working Group and focuses on several “remaining” areas where DEFRA believes change is required to meet the UK’s nature recovery ambition, i.e. areas not covered by the Environment Act 2021, the Fisheries Act 2020, the Agriculture Act 2020, the Sustainable Farming Incentive and the Local Nature Recovery and Landscape Recovery schemes. By far the most detailed chapter is Chapter 3, the proposals for protecting wildlife sites on land and at sea, which is the focus of this note. Chapters 4-6 will be dealt with in a separate note.

Protected sites: a primer

To understand why there is a significant overlap between protected sites, as correctly identified in the Green Paper, and why this might be problematic, it is useful to consider the various nature conservation regimes in place in the UK, their scope and their purpose. This section will therefore provide a brief overview of the patchwork of regimes that govern this area.

Sites of Special Scientific Interest (“SSSIs”) as their name suggests, have roots in the post-war idea that nature had a “scientific” value. Under section 28 of the Wildlife and Conservation Act 1981, Natural England may designate (notify) a site as being of special interest by reason of any of its flora, fauna, geological or physiographical features. A notification by Natural England specifies the features by reason of which the land is of special interest and any operations Natural England believe are likely to damage those features.

The practical implications of a SSSI notification are that if an owner or occupier wishes to carry out an operation considered likely to damage the features, prior consent is required from Natural England, unless the operation is carried out in accordance with a management agreement or management scheme.

Special Areas of Conservation (“SACs”) and Special Protection Areas (“SPAs”) are designations deriving from two EU Directives: the Habitats Directive and the Birds Directive. The designation of sites under the two directives differs. The basis of designation of a SPA is scientific: it must be ornithological criteria alone set out in the Birds Directive (e.g. 1% of the population of listed vulnerable species). By contrast, for SACs, Member States must make a selection of proposed areas according to scientific criteria listed in Annex III of the Habitats Directive, to ensure that specific habitat types and habitats of certain protected species are maintained. Based on these proposals, scientific seminars are convened for each biogeographical region and a list of Sites of Community Importance (SCIs) are ultimately adopted. Member States must designate those areas of Special Areas of Conservation (SACs) within six years.

The main implication of such a designation it requires an assessment (known in the UK as a Habitats Regulations Assessment or “HRA”) to take place before any potentially damaging activity can take place. If the HRA concludes that the impact is likely to adversely affect the integrity of the site, the only way in which development may occur on such a site is where there are imperative reasons of overriding public interest (IROPI). Where these are present, the competent authority will also decide what potential compensatory measures are needed to maintain the overall coherence of the site.

The question of whether such an impact requires a HRA and whether it meets the test, is a question for the decision-maker. As set out in the green paper, the HRA process “aims to inform decision-making regarding the protection of conservation areas of international importance from any harm that may arise from activities or development” – it is not intended to be prescriptive about what can or cannot be built, or deliver any set conservation outcomes.

Pausing there, it is possible to see why there is frequently (if not nearly always) an overlap between SSSIs, SACs and SPAs. It is likely that a site of special interest for reason of its fauna (and thus designated a SSSI), would also be a European protected site for the habitat it provides for such fauna (requiring a SAC designation) – and potentially even fall under a migration path for certain birds and protected for that reason too (SPA). However, not only do these regimes protect different things (site of special interest, habitats, birds) but also SSSIs and the EU regimes offer different forms of protection. For SSSIs, Natural England must grant prior consent for any specified operation whereas for SACs, and SPAs, any “plan or project” may trigger the need to carry out a HRA.

Marine Conservation Zones (“MCZs”) and a network of marine conservation sites were created under the Marine and Coastal Access Act 2009. Ramsar sites are wetlands of international importance, designated under the Convention on Wetlands of International Importance (Ramsar convention), of which the UK is a signatory.

Given its breadth, SACs, SPAs and Ramsar sites can easily be designated SSSIs and indeed almost all (if not all) land-based SACs and SPAs are also SSSIs. In contrast to National Nature Reserves (NNRs), SSSIs are often on private land.

Protecting wildlife sites – on land and at sea

There are two main limbs to the Government’s proposals for reform in this area: (a) consolidation and (b) promotion of scientific judgment.

A. Consolidation

The section opens with the statement that “the Government is interested in consolidating the protected sites we have into a simpler legal structure to deliver better environmental outcomes which are based on the best available science and evidence”. It highlights in particular the “disconnect between the historical purposes for which different types of sites were designated and our ambition to halt biodiversity loss by 2030 and protect 30% of our land and seas”. Accordingly, “a more ecologically coherent but less complex network of sites with a clear purpose could offer multiple benefits and ensure the network better addresses both nature recovery and climate change”.

These statements raise a number of questions which remain unanswered throughout the paper. Is case that the existing network of sites are not “ecologically coherent” or fail to be based on science? And whilst it may be the case that the historical purpose of SSSIs is not solely concerned with biodiversity or habitats (as we see above, it is much wider), it is difficult to see how designations such as SACs, MCZs and Ramsar sites are concerned with anything other than biodiversity loss. And as for the goal of protecting 30% of land and seas, one might legitimately ask why the goal of increasing the amount of land protected in the UK requires overhauling and redefining protected sites – unless, of course, this might make the goal easier to achieve by making it easier to categorise sites as “protected”.

Turning to the proposals, these fall under three main types (although the green paper splits them into five headings): (1) protected sites reform/consolidation (2) reform/consolidation of the designation procedure for such sites and (3) introduction of new nature recovery sites.

(1) Protected sites reform

The paper identifies three options for reform of terrestrial sites, all with the aim of better enabling “nature’s recovery through a less prescriptive system which allows the right actions to be taken in the right places” (unfortunately, the paper does not elaborate on the precise ways in which it believes the current system to be over-prescriptive, or what the “right actions” are that need to be taken are but cannot currently be taken in the existing system).

Option 1 is a tiered approach, which proposes to replace the existing regimes with ‘highly protected’ sites (applying only to a limited number of sites of the highest international importance) and ‘protected’ sites (managed for national or international biodiversity or geodiversity importance as SSSIs, SACs and SPAs are currently). ‘Highly protected’ sites would provide stronger protection than currently applied to existing SACs and SPAs and would largely focus on protection and recovery of terrestrial ecosystems (e.g. nature reserves). The paper notes that for ‘protected’ sites, as at present, economic and other activities would need to be sustainable in relation to the conservation objectives of those sites.

Option 2 would focus on “streamlining and merging existing site designations that operate similarly (SACs, SPAs, and SSSIs)”. An example provided is to “rename” the site designations as ‘highly protected’ and ‘protected’. It suggests that the areas of existing sites network which are of international biodiversity and geodiversity importance could be designated ‘highly protected’; and that ‘protected’ could apply to the remaining areas of the sites network, which could be managed and protected in a similar way to SSSIs.

The distinction between this proposal and option 1 appears to be that option 1 would strengthen the protection for a limited number of sites, whereas option 2 appears to be just a renaming exercise. However, for option 2, it is unclear where the distinction between ‘highly protected’ and ‘protected’ will apply, since it appears to suggest that the ‘highly protected’ designation will be give to areas of the existing site network which are of ‘international and biodiversity and geodiversity importance’. Logically, this would mean all Natura 2000 sites, i.e. all SACs and SPAs – and therefore nearly all SSSIs too.

Option 3 consists of consolidating existing sites into one single type of protected site designation, which could “reflect the existing sorts of protections whilst offering an opportunity to convey the value and benefits of these sites more easily to people”. The paper notes that existing rules already identify and offer additional protection to certain priority habitats and species, where a significant portion of their natural range falls in the UK – giving blanket bogs as one such example. It also suggests exploring scalable levels of protection within one type of designation, which it suggests could (i) help support recovery through higher protection levels where needed (ii) offer scope to adapt sites more easily to climate change or (iii) enhance protections to areas of particularly significant nature value.

By contrast, for marine sites, the paper notes that despite the multiple designation types, the MPA network is “ecologically coherent”. But, given that the range of marine designation types can cause confusion, there may be benefits to consolidating designations, which could mean a single designation type (such as Option 3) or formalising the current policy approach of MPAs and HPMAs into two designation types (i.e. an approach similar to Option 1).

(2) Reform/consolidation of the designation procedure

As set out above, notification (designation) of SSSIs is the responsibility of Natural England. By contrast, final decisions for other statutory designations (such as SACs and SPAs) rests with the Secretary of State.

The paper references the risks and opportunities from climate change impacting protected sites, noting that it is likely to become increasingly difficult to accommodate this impact unless designation and management processes are adapted. To solve this issue, it proposes to have “one consistent decision-making process as part of a rationalised site protection system” with one option being for it to rest with the Secretary of State, informed by the scientific advice of its statutory advisors “in a similar way to how SACs and SPAs are currently designated”.

In short, it proposes removing Natural England’s power to designate sites, and giving this to the Secretary of State, on the basis that having two designation processes means that the risks from climate change cannot be adequately addressed. It is not entirely clear how this follows, nor is it made clear, if there has to be one designation procedure, why the Secretary of State would be better placed to do this than Natural England. For those fearing that the Secretary of State, as opposed to Natural England, might be swayed by other concerns that nature protection, the paper seems to seek to allay such fear by emphasising that at any new decision-making process will “be consistent with our existing international commitments and be fully transparent with regard to the decisions taken”.

(3) Introduction of new nature recovery sites

The final area of ‘consolidation’ relates to nature recovery sites. The paper notes that designation of protected sites has not been successful in helping sites recover to a more favourable condition and avoiding further decline. To that end, it notes the new initiatives being brought forward (Nature Recovery Network, Biodiversity Net Gain, the Nature for Climate Fund and new contracts under Conservation Covenants) but also notes how it is considering whether a new sort of designation for nature’s recovery should be explored. To that end, it seeks views on several areas including:

– Identification (strategies to identify potential ‘Nature Recovery’ sites for formal consideration, such as those set out in the government’s vision for Local Nature Recovery Strategies)

– Safeguards (how the planning system can play a role in promoting environmental recovery and long-term sustainability)

– Management (suggesting less prescriptive management measures and a holistic approach)

– 30 by 30 (whether such sites should ‘count’ towards the 30 by 30 goal)

– At sea (creative thinking about opportunities for co-location and space sharing to maximise benefits for sea users while also protecting the marine environment).

The paper also references the recent ‘rewilding’ approaches that have been developed on land, noting how, due to failing to meet established selection criteria for designation (despite their benefits for biodiversity), they are frequently not recognised for the value they can bring in making space for nature. On the other hand, it notes the concern that designation of such sites could lead to management in ways that limit or inhibit the opportunity for other species and habitats to flourish. It therefore suggests providing flexibility as to what areas could be designated and also in the requirements following such a designation.

B. Scientific Judgment in site management and protection

This second part of Chapter 3 paints a pretty dismal picture of the Habitats Directive in operation – its “interpretation has often led to high levels of legal uncertainty which can be corrosive to good governance”; “process has become king and crowded out scientific judgment on individual cases”, and whether or not a certain activity should be altered or restricted is “guided as much by concerns about possible future legal challenge over decision making, as it is by the actual impact of the activity”. Another problem identified is that “the current process lacks the tools necessary to incentivise change on the main pressures and threats affecting a site, some of which are not subject to [Habitats Regulations Assessment]”

Strong criticism indeed, and it is worth noting that the HRA Review Working Group summary of findings (found here) presents a slightly less pessimistic picture. The experts highlighted the need for greater certainty and clarity throughout the HRA process, with key points being:

– Clarification of legal terminology and processes

– A need to make existing data readily available and user friendly

– Specific site advice accessible in one place

– Basing scientific judgements on a clearer framework of evidence (screening and assessment)

– Earlier consideration of avoidance or mitigation measures

– Earlier expert engagement to increase Local Planning Authority confidence in scientific evidence

They also suggested further exploration into:

– Use of strategic mitigation solutions to secure better outcomes from the assessment process

– A more strategic approach to “environmental compensation” to support nature recovery.

On the litigation risk, again the conclusion of the working group was more muted: “whilst it is a straightforward process in some respects, the amount and type of specialist evidence required coupled with the perceived risk of legal action, creates an elevated level of caution around decision-making.”

The Green Paper notes that the UK government wants to “fundamentally change” the way assessments under the Habitats Regulations work to create clearer expectations of the required evidence base at an early stage and with a focus on addressing the threats and pressures on and off site that will make the greatest difference to the site. In addition, there is a desire to “make sure there is space of individual evidence-based judgement by an individual case officer on an individual case”.

The paper identifies seven main areas for reform.

(1) Assessment and consent

In this section, the work of the HRA working group is referenced, namely their proposal for a single reformed assessment process which complements proposals for simplified site designations, and their suggestions for clarity, certainty and a strategic approach to mitigation.

It is suggested that the single assessment would remove some of the complexities from having a number of assessment regimes on SSSIs and provide greater certainty and consistency for users. The paper goes on to say that this single assessment would be supported by “a clearer decision-making framework aimed at addressing process and data issues, including the earlier consideration of alternative ways to implement a plan or project and mitigation measures and creating more reasonable and clearer expectations of the required evidence base.” However, there is no further detail at this stage as to what this framework would look like and how it would achieve those aims.

(2) Addressing the legacy impact of dormant SSSI consents

This second heading notes the problem that many SSSIs issued in the past which permit certain activities, might, if exercised, cause damage or deterioration to protected sites. It notes that currently Natural England has only limited powers to change such consents and that these can only be modified or revoked on a case-by-case basis and that such revocation may require compensation. However, no solution is proposed to address this issue – just that it needs to be addressed. It is interesting to note, however, that in previous sections the concern has been on the need for ‘site-specific’ and ‘case-by-case’ decision-making, whereas in the case of revocation, this is seen as part of the problem.

(3) Management of protected sites

Instead of the current focus on stopping the deterioration of protected sites, the Green paper underlines the need for a “future protection process which can also support the management of the site and nature recovery”. This again represents the shift identified at the start of the paper – away from conservation or maintaining the status quo, to focusing on improvement or recovery.

The paper suggests a greater role for Site Improvement Plans (‘SIPs’) as one option which would allow problems to be approached more strategically and in a more tailored way. SIPs currently exist as a tool for identifying actions that need to be taken by public, private and voluntary bodies on protected sites to address existing pressures and threats impacting their conservation status. The green paper suggests “making the concept [of SIPs] statutory”, as a means to increase their uptake as a basis for action.

(4) The Habitats Regulations: Power to amend the general duties

A further issue identified by the paper is that the requirements of the Habits Directive and the Wild Birds Directives (with regard to which public authorities are required to exercise their nature conservation functions) are not explicitly set out. The paper identifies this issue as providing scope for differing interpretations and disagreement, and emphasises the “new” power within the Environment Act to amend the ‘general duty’ under Regulation 9 to delivery domestic and international biodiversity duty.

(5) Management at sea

As for management at sea, the key area for exploration is whether existing processes in other legislation applying to the UK can delivery improved outcomes for MPAs and better support the objective or protecting important marine habits and species, as opposed to the current requirement for a HRA under Part 6 of the Habitats Regulations (which applies out to 12 nm).

(6) Environmental Impact Assessment

Tucked away on page 19 of the green paper, this section is of particular interest as it notes that the Government is “committed” to reform of both the SEA and EIA process “to better support nature recovery”. One reason why this is particularly noteworthy is that both regimes are currently very broad, looking and impacts on “the environment” rather than just nature or habitats – so it will be interesting to see whether the reform proposes to narrow it or merely refined it in certain respects in the area of nature recovery.

It notes that the reforms “will ensure environmental protections are more relevant; and more closely monitored and enforceable with a stronger focus on delivering the outcomes we need” – in short, the revised EIA seems like it will no longer be about assessment for the purposes of informed decision-making but may set down targets or rules to deliver outcomes. An interesting approach in a paper determined to be less “prescriptive”. The paper does not state when the proposals will be brought forward.

(7) Establishing priority areas for woodland creation

The final subheading looks at afforestation projects, noting that the existing requirement for a determination under the forestry EIA regulations can be resource and time intensive. The paper proposes that the Forestry Commission undertake an Afforestation Strategic Assessment, described as a “landscape scale scoping project” assessing the relevant features likely to be affected by afforestation, with the aim of establishing preferred low risk areas for afforestation. Afforestation projects within those areas would then not require an individual EIA or equivalent impact assessment (except in “exceptional circumstances”). The aim is to “kick-start” afforestation projects and encourage locating new woodland in areas of the least risk to surrounding habitats

What Are Conservation Covenants?

The Environment Act 2021 was born on 9 November 2021, over 22 months after the first version of the Bill received its first reading on 30 January 2020 – a gestation period equalled in the animal kingdom only by the African elephant.

One of the less controversial but potentially most useful elements of the Act is Part 7, namely the introduction of a mechanism for land owners to enter into “conservation covenants”. What is this new beast?

In simple terms, a conservation covenant is a private voluntary agreement between a land owner and a local authority or other responsible body designated by the Secretary of State with commitments given by the land owner, enforceable against successors in title, to do or not do specified things on the land that have a “conservation purpose”.

The Law Commission first recommended in a 2014 report that this regime be introduced in legislation, given that existing legal mechanisms each have significant legal and/or practical limitations, for instance planning obligations need to fall within the types of commitment specified in section 106(1) of the Town and Country Planning Act 1990 and regulation 122 of the CIL Regulations will often be a constraint on the authority’s ability to take the obligation into account in its decision making; restrictive covenants more generally carry with them the constraint of requiring the party with the benefit of the covenant to have an interest in land that will take the benefit of the covenant (the “dominant tenement” as any legal fule kno) and with the covenant having to be a negative obligation in order to be automatically enforceable against successors.

The Commission gave three examples of how conservation covenants might be used:

• “protecting woodland over the generations”

“Example: The owner of an extensive family estate, much of which is forested and used by the public for hiking, intends to leave the land to her children. She wants to ensure that the forest is maintained and that public access continues, but she is not sure that her children – or future generations – would share those priorities”

• “selling heritage property”

“Example: A heritage group has invested funds in buying and restoring a Tudor house. The organisation wishes to sell the property, but wants to ensure that the work it has undertaken, and the heritage value of the property, is preserved.”

• “”protecting a biodiversity offsetting site”

“Example: A local planning authority is faced with a planning application for an affordable housing development. The proposed development site is a wild flower meadow. If the development were to go ahead the meadow would be destroyed completely. In this instance the planning authority is willing to grant planning permission, provided the damage caused to the meadow is offset by the creation and long-term maintenance of a similar site elsewhere.”

(Of course there has since been significant progress in relation to the principle of biodiversity net gain – see the provisions in Part 6 of the Act summarised in my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill).

DEFRA then carried out a consultation in 2019. Its subsequent response to the consultation process confirmed that it would proceed with legislation, by way of the Environment Bill, and would develop guidance.

The provisions in Part 7 of the Act the provisions do indeed give effect to what was proposed. For a good summary I recommend that you look at the explanatory notes to the Act (pages 132 to 141). Some highlights from that summary:

• It must be apparent from the agreement that the parties intend to create a conservation covenant.

• Any provision must be of a “qualifying kind”, which can take one of two forms. “First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.” The agreement can also include ancillary provisions.

• The land owner must have a “qualifying estate” in the land – namely a freehold interest or a leasehold estate of more than seven years.

• A conservation purpose “extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.” This is important! Conservation covenants are not just about nature conservation but can also be used in relation to, for instance, heritage conservation (see back to that second example from the Law Commission report).

• Bodies (including local authorities) need to apply to the Secretary of State to be designated by the Secretary of State to be a responsible body. If not a local body, the applicant body “will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation”. Criteria will need to be published by the Secretary of State. (Interesting that local authorities are not automatically designated).

• A conservation covenant is a local land charge and once registered is effective against subsequent owners of the land. It has indefinite effect unless otherwise stated in the agreement (and subject to the length of the relevant lease if entered into by a leaseholder). Enforcement will usually be by way of seeking an injunction or order for specific performance. It can be discharged or modified by agreement or by application to the Upper Tribunal.

• Section 135 (1) “gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.”

There is no news yet as to when the Regulations will be made to bring Part 7 into force. The biodiversity net gain provisions are likely to be a couple of years away from being switched on. Let’s hope that conservation covenants are not that far off, although of course we do need some good guidance to accompany what could prove to be a well-used procedure, because the opportunities for use of conservation covenants are wide: commitments to provide biodiversity net gain off-site are an obvious example but think also about commitments in relation to offsetting to address nitrate, phosphate or water neutrality for instance, as well as commitments which might previously have involved transferring land to a conservation or heritage group – the land will now be able to be retained with long term commitments given by way of a CC.

This week’s Clubhouse session (6pm 7 December) will be a descent into the strange world of planning enforcement. Whatever your perspective, Scott Stemp and Nicola Gooch will be leading us through the murky depths. Stories welcome. Link to app here.

Simon Ricketts, 3 December 2021

Personal views, et cetera

Extract from photo by Hu Jiarui , courtesy Unsplash

Ecology By Numbers: Biodiversity Net Gain In The Environment Bill

We’re probably all increasingly familiar with the basic principles of biodiversity net gain. Even ahead of the statutory system being introduced which is the focus of this post, there is a growing policy basis for authorities to use at least a basic version of what is set out in the Environment Bill (although without any formal national prescription yet as to, for instance, the extent of net gain required or national process for the purchasing of credits).

The Environment Bill is reaching its final stages – report stage in the House of Lords is on 13 October 2021 and it then finally returns to the Commons (subject to the possibility of there then being some ping ponging between the Houses in relation to the Lords amendments I referred to in my 17 September 2021 blog post On Reshuffle Day, In Another Part Of The Forest) before receiving Royal Assent.

DEFRA indicated back in 2019 that once the Bill is enacted there will be a two year transitional period before the provisions on biodiversity net gain come into effect, but in that period there is going to be a lot of important stuff happening (and with the delays to the Bill whilst progress has been made on other aspects of the system might there be a prospect of that two years being abbreviated?). The robustness, and workability, of the system depends on:

⁃ sensible and efficient, but water-tight, administrative processes being set out in secondary legislation by way of regulations, for instance in relation to the pricing, availability and use of biodiversity credits

⁃ the availability of good data and methodologies (in relation to which Natural England has made good progress)

⁃ standardised, arrangements for securing long term (30 years plus) management arrangements by way of conservation covenants (not covered in this post but another crucial element of the Bill) and, our old friend, section 106 agreements

⁃ a workable system of monitoring and enforcement.

Before I briefly summarise the provisions on BNG in the Bill, given that the BNG system is going to live on for some time on a purely policy basis, I thought it was worth setting out that policy basis.

First of all there are relatively general references in the NPPF (extracts below showing amendments from the 2019 version).

There is more useful detail in the “net gain” passages within the natural environment section of the Government’s planning practice guidance.

Local authorities are under a general duty under Section 40 of the Natural Environment and Rural Communities Act 2006 to have regard, in the exercise of their functions, to the purpose of conserving biodiversity, but the level to which they can prescribe particular approaches to BNG and the level of net gain required depends on whether they have policies in place addressing these matters – with the weight to be attached to the policy depending on the nature of the document.

Pre-legislation we already of course have Natural England’s biodiversity metric 3.0 to work from, with much accompanying guidance, including guidance on using the calculation tool.

Turning to the Bill itself, the provisions on biodiversity net gain comprise clauses 99 to 104 and schedules 14 and 15

In brief:

Standard condition on planning permissions

Clause 99 introduces schedule 14, the effect of which I briefly summarise as follows:

• “The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage” which is 10% or such other percentage as is set out in regulations.

• The biodiversity value attributable to a development is “the post-development biodiversity value of the onsite habitat, (b) the biodiversity value, in relation to the development, of any registered offsite biodiversity gain allocated to the development”, and (c) the biodiversity value of any biodiversity credits purchased for the development”.

• The biodiversity metric is a document for measuring biodiversity value and it is to be published and updated from time to time by the Secretary of State.

• Pre-development biodiversity value for the site is measured as at the date of an application for planning permission (or the applicant and local planning authority may agree an earlier date). If activities are carried out on the land on or after 30 January 2020 without planning permission which reduce the biodiversity value of the onsite habitat, the biodiversity value is to be taken to be that which was the case immediately before those activities (a measure to avoid land owners intentionally reducing the pre-development biodiversity value).

• Post-development biodiversity value is “the projected value of the onsite habitat as at the time the development is completed”. There must be a condition or planning obligation requiring the habitat enhancement to be maintained for at least 30 years.

• Registered offsite biodiversity gain means any habitat enhancement where there is a legal commitment to carry it out and the enhancement is recorded in the biodiversity gain site register (see below).

• “Every planning permission granted for the development of land in England shall be deemed to have been granted subject to the condition” that a biodiversity gain plan has been submitted to and approved by the relevant planning authority.

• The biodiversity gain plan must show how the biodiversity gain objective is to be met either through on site enhancement by registered offsite biodiversity gain or by purchase of biodiversity credits. Regulations will set out the procedure the planning authority is to follow in determining whether to approve a biodiversity gain plan and the factors to be taken into account. At the moment there is no prioritising as between on-site, off-site and the purchasing of credits.

• The standard condition does not apply to development approved under a development order, on Crown land or any type of development which is specified within regulations as exempted.

• Regulations may modify or exclude these provisions for “irreplaceable habitat” and “must make provision requiring, in relation to any such development, the making of arrangements for the purpose of minimising the adverse effect of the development on the biodiversity of the onsite habitat”.

• There will be provisions in regulations to deal with the outline planning permissions, retrospective planning permissions and so on.

NSIPs

Clause 100 introduces schedule 15, which sets out how BNG works with in relation to nationally significant infrastructure projects, and the effect of which I briefly summarise as follows:

• If there is a national policy statement covering the type of development, it will be down to whether the national policy statement contains a biodiversity gain statement, in which case the biodiversity gain objective contained in the statement must be met.

• If there is no national policy statement covering the type of development, it will be down to whether the Secretary of State has made a biodiversity gain statement for that type of development, in which case the biodiversity gain objective contained in the statement must be met.

Biodiversity gain register

Clause 101 enables the Secretary of State to make regulations providing for a register of biodiversity gain sites – land which is legally required by conservation covenant (a binding mechanism provided for elsewhere in the Bill) or planning obligation to be maintained for habitat enhancement for at least 30 years and the “enhancement is made available to be allocated (conditionally or unconditionally, and whether for consideration or otherwise) in accordance with the terms of the covenant or obligation to one or more developments for which planning permission is granted”. The regulations will provide for the register to be open to the public, who should maintain it (the Secretary of State, Natural England “or any other person”), the information it includes and the procedure to be followed for a site to be placed on the register.

Biodiversity credits

Clause 102 allows the Secretary of State to “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”, including the biodiversity value of a credit, its pricing and procedural arrangements, including “reimbursement for credits purchased for development which is not carried out”. “In determining the amount payable under the arrangements for a credit of a given value the Secretary of State must have regard to the need to determine an amount which does not discourage the registration of land in the biodiversity gain sites register.” Payments must only be used by the Secretary of State for the carrying out of habitat enhancement works on land in England, purchasing the necessary land and operating the arrangements. He must report annually on payments received/used.

This is such a big subject and it’s only going to get bigger.

Some further reading:

Natural England’s blog post Biodiversity Net Gain – more than just a number (21 September 2021)

Explanatory notes on the Bill as it stood on 26 May 2021.

Net gain: summary of responses and government response (DEFRA, July 2019)

My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide.

Simon Ricketts, 2 October 2021

Personal views, et cetera

👋 For some further listening and discussion on this very subject, do join our clubhouse Planning Law Unplanned event at 6 pm on 5 September. Join the app here.

On Reshuffle Day, In Another Part Of The Forest

“If a tree falls in a forest and no one is around to hear it, does it make a sound?”

Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.

Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.

The amendments at that stage were reported in this piece: Environment Bill: The 10 government defeats in the Lords (ENDS Report, 14 September 2021). They include:

– making interim targets for nature, air, water and waste legally binding;

– requiring the Government to make a formal declaration of a biodiversity and climate emergency;

– a more ambitious approach to targets in air pollution;

– making soil health a priority;

– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.

However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.

Habitats Regulations: limits on powers to amend

Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”

It was passed 201 to 186.

The amendment provides that the Secretary of State may only amend the regulations

“for the purposes of—

(a) securing compliance with an international environmental obligation, or

(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;

(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and

(i) following public consultation and consultation with—

(ii) the Office for Environmental Protection,

(iii) Natural England,

(iv) the Joint Nature Conservation Committee, and

(v) other relevant expert bodies.”

Duty to implement an enhanced protection standard for ancient woodland in England

Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”

It was passed 193 to 189.

The amendment introduces the following additional clause into the Bill:

(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.

(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.

(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.

(4) This standard must be that—

(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,

(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,

(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.

(5) This buffer zone must be whichever is greater of—

(a) an area which is a radius of 15 times the diameter of the tree with no cap, or

(b) 5 metres beyond the crown.”

The debate is here and Parliament’s summary of the House of Lords report stage is here.

(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)

As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:

“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.

Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”

That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.

Keep your ears open is all I’m saying…

Simon Ricketts, 17 September 2021

Personal views, et cetera

And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.

Photograph by Michael Aleo courtesy of unsplash

Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

“My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

● The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

● The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

● The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

● The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

● We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

● To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

● The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

● The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

● To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

● The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

● The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

● For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

● This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

“New measures will be brought forward…to improve building safety.”

● An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

○ Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

○ Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

○ Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

○ Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

○ Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

● We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

“New measures will be brought forward…to improve building safety.”

● Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

● Strengthening the relevant enforcement powers to hold building owners and managers to account.

● Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

“My government will prioritise investment in infrastructure…”

● The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

● The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

● The Strategy will have two key aims:

○ To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

○ To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

● The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

● Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

● The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

● The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

● The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

● Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

● Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

“My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

● We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

● This means proposals to transform this country with better infrastructure, better education, and better technology.

● We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

● It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

● These increased powers and funding will mean more local democratic responsibility and accountability.

● We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

“To support business, my government will…bring forward changes to business rates.”

● The Government is committed to conducting a fundamental review of business rates.

● The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

● We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

● We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

● More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”

● Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

● Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

● Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

● Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

● Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

● Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

“My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

● We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

● The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

● With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

● Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

○ introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

○ establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

○ lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

○ in our trade negotiations, never compromise on our high environmental protection

● We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

● We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

● We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

“A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

● Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Don’t Print The Environment Bill

Two reasons not to press print:

It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.

Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.

However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.

I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.

NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.

Environmental Governance (Part 1 of the Bill)

This covers the ground previously mapped out in the December 2018 draft Environment (Principles and Governance) Bill which I covered in my 22 December 2018 blog post The Office For Environmental Protection, although the ground has moved substantially.

Some of the changes, and the reasoning for them, are summarised in the Government’s Response (published alongside the Bill on 15 October 2019) to the House of Commons Environment, Food and Rural Affairs Committee’s Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (30 April 2019).

Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:

Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.

Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).

As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:

(a) the principle that environmental protection should be integrated into

the making of policies

(b) the principle of preventative action to avert environmental damage

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.

The following were in the draft but no longer appear:

⁃ the principle of sustainable development

⁃ the principle of public access to environmental information

⁃ the principle of public participation in environmental decision-making, and

⁃ the principle of access to justice in relation to environmental matters

I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?

Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.

The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –

(a) the protection of the natural environment, and

(b) the improvement of the natural environment”.

One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:

“We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”

My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.

I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.

To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.

“(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.

(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).

(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.

(8) Where the Upper Tribunal makes a statement of non-compliance it may grant

any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or

(b) be detrimental to good administration.”

The Government’s Response said this:

“The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”

Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.

There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:

⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008

⁃ taxation, spending or the allocation of resources within government.

Thumbnail sketch of the rest of the Bill

Part 3 covers waste and resource efficiency, including:

⁃ producer responsibility obligations

⁃ deposit schemes and charges for single use plastic items

⁃ managing waste

⁃ waste enforcement

Part 4 covers air quality and the environmental recall of motor vehicles.

Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.

Part 6 covers nature and biodiversity, including:

⁃ biodiversity

⁃ local nature recovery strategies

⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).

The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:

“Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.

Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.

More anon.

Part 7 covers conservation covenants.

These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.

As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.”

Again, more anon.

Concluding remarks

So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.

Admission: I did press print.

Simon Ricketts, 19 October 2019

Personal views, et cetera

Biodiversity Net Gain: A Ladybird Guide

Whoops I did it again: agreed to give a talk on a subject before researching it. These are no more than my notes but I hope the links at least are useful.

The Chancellor announced in his Spring Statement that “following consultation, the government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England, ensuring that the delivery of much-needed infrastructure and housing is not at the expense of vital biodiversity.”

A DEFRA blog post was published the same day, quoting Michael Gove:

“Mandating biodiversity net gain will ensure wildlife thrives at the same time as addressing the need to build new homes. Whether it’s through planting more trees or creating green corridors, developers will now be required to place the environment at the heart of new developments.

This new approach will not only improve habitats for wildlife and create healthier places to live and work, but is central in our ambition to leave the environment in a better state for future generations.”

This is what we have committed to do in any event so as to comply with our obligations under the UN Convention on Biological Diversity which we ratified in 1994. In order to seek to meet the Aichi 2015 – 2020 biodiversity targets the UK has committed as one of its “priority actions“, that it will, “through reforms of the planning system, take a strategic approach to planning for nature within and across local areas. This approach will guide development to the best locations, encourage greener design and enable development to enhance natural networks. We will retain the protection and improvement of the natural environment as core objectives of the planning system.”

The UK’s Joint Committee for Nature Conservation reported on progress in its 6th National Report to the Convention on Biological Diversity (January 2019), submitted to the Convention’s Secretariat on 11 March 2019.

The principle of requiring biodiversity net gain is supported not just by environmental groups but by development industry bodies – see for instance UK Green Building Council open letter dated 1 March 2019 to the Chancellor:

“We […] look to the Government to establish the long-term legal framework needed to fulfil its pledge to “leave the environment in a better state than we found it” – and the proposed Environment Bill is the opportunity to do so. The Bill can provide the foundation for a shift from an economy in which business aims to limit its impact on the environment towards an economy that is restorative and regenerative by design.

We are calling on the Government to use the Bill to set legally binding targets for the achievement of environmental objectives – including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste. By setting binding targets, the Government can give the construction and property sector the confidence and certainty we need to help drive nature’s recovery, and set a level playing field that enables businesses who do the right thing to be rewarded.”

The letter was signed by representatives of the following organisations (a pretty good list!):

Argent (Property Development) Services LLP

Atelier Ten

BAM Construct UK

BAM Nuttall Ltd

Barratt Developments Plc

Bennetts Associates

Berkeley Group Holdings

BRE

British Land

Clarion Housing Group

Colliers International

GS8

Hoare Lea

Interface

JLL

Kingspan Insulation Ltd

Lendlease

Linkcity

Redrow plc

Telford Homes Plc

William Hare Ltd

Willmott Dixon

WSP

So what lies ahead? This is an initiative which has real momentum, but requires careful implementation if it is not on the one hand to be adding unreasonably to the burden of applicants and authorities (in terms of what further documentation and analysis is required and/or in terms of placing the hurdle for an acceptable scheme impossibly high) or on the other hand to be so lax as to be providing nothing over and over present policy requirements.

DEFRA published on 2 December 2018 its Net gain: consultation proposals document, giving a deadline for responses of 10 February 2019.

The document defines net gain as follows:

“Net gain is an approach to development that aims to leave the natural environment in a measurably better state than beforehand. This means protecting existing habitats and ensuring that lost or degraded environmental features are compensated for by restoring or creating environmental features that are of greater value to wildlife and people. It does not change the fact that losses should be avoided where possible, a key part of adhering to a core environmental planning principle called the mitigation hierarchy. Net gain is not a new concept. Several countries around the world have already adopted biodiversity net gain policies and net gain for biodiversity is already supported through national planning policy.”

A footnote to passage notes:

“NPPF paragraph 170 states that planning policies and decisions should minimise impacts on and provide net gains for biodiversity; paragraph 174 requires plans to pursue opportunities for securing measurable net gains; paragraph 175 requires planning decisions to encourage biodiversity improvements in and around developments and paragraph 118 states that the planning system should take opportunities to secure net environmental gains“.

The consultation document is a detailed document, but this inset within it summarises the proposed role of biodiversity net gain in the planning system:

“Our proposal is that biodiversity net gain will be delivered within the existing planning and development process. This summary is illustrated in the infographic that follows.

When assessing potential development sites, habitat surveys will identify habitats and their condition as is already done for much development. Surveys help identify opportunities for enhancement as part of green infrastructure as well as possible constraints.

Development design will proceed as normal, but better informed by figures for biodiversity losses and gains. A standard biodiversity metric will be populated with habitat information from the site assessment and landscape plans. This will help demonstrate at an early stage that harm has been avoided as far as possible and that new green infrastructure will be of good environmental quality. The metric could also help to anticipate the costs of achieving net gain to factor these into land purchase where possible. No existing planning protection for the environment will be weakened and the principle of avoiding harm first (known as the “mitigation hierarchy”) will continue to ensure that preventing damage to nature will always be prioritised, wherever possible.

If net gain cannot be achieved on site, the metric would provide the right information to discuss habitat enhancement or creation with local providers or with the local authority during pre-application negotiations. The tariff rate would offer a guide for the upper limit of habitat compensation costs, alongside information from growing habitat creation markets.

When preparing local plans, local authorities are able to identify opportunities for habitat improvement that would benefit local people and support nature recovery. They would be able to choose to bring improvement sites forward themselves or work with other providers.

When developers and local planning authorities are consulting with the local community prior to submitting a planning application, it will be possible to use biodiversity net gain figures and habitat enhancement measures to explain the benefits and costs of a development proposal more transparently.

With clearer expectations, developers will be able to submit planning applications with greater confidence that proposals can be supported on biodiversity grounds.

For local authorities, transparent figures for biodiversity losses and gains can be quickly checked and provide confidence that impacts will be positive. Figures will also indicate the environmental quality of green infrastructure as part of development design.

As part of the planning permission, developers would sign up to predictable conditions, obligations or a tariff payment to secure biodiversity net gain. The availability of a tariff would prevent planning permission from being delayed by net gain requirements, and local authorities will be able to demonstrate that positive impacts to help improve the environment for local communities have been secured.”

The full list of the 45 consultation questions within the document demonstrates the potential complexity of what is proposed:

From a practical perspective, key issues are plainly going to include

⁃ establishing a robust ‘biodiversity unit’ metric

⁃ determining what would the required level of improvement (where does 10% come from?)

⁃ determining the circumstances in which a tariff or other off-site arrangement is appropriate and calculating its quantum

⁃ arriving at practical delivery mechanisms, by way of planning conditions, section 106 obligations and/or CIL, that meet relevant legal and policy requirements.

What I would love to understand is really how “mandated” the proposed requirements will be in practice. Does the Government envisage that the detailed regime can be bolted into the existing planning system by way of amendments to the PPG (which seems implausible given the potential nature of the tariff measures in particular) or will the Environment Bill be prescriptive in terms of what precisely will be required?

DEFRA is apparently due to respond to the consultation shortly, with the Bill likely to be published before the summer recess but, dear reader from the near future, you are possibly looking back at this blog post thinking “well that didn’t age well…”

Simon Ricketts, 30 March 2019

Personal views, et cetera

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