As a future landmark piece of legislation, which aims to improve air and water quality, tackle plastic pollution, restore wildlife and protect the climate, the Environment Bill 2019-2021 is eagerly awaited and anticipated.
One can understand the disappointment therefore when it was announced on 26 January 2021 that scrutiny of the Bill has had to be carried over to the next Parliamentary Session (which is expected to start in May 2021) due to the exceptional pressure of the Covid-19 Pandemic on the Parliamentary timetable.
Rest assured, the Environment Minister Rebecca Pow has confirmed that the Government remains "fully committed to the Environment Bill as a key part of delivering the Government's manifesto commitment to create the most ambitious environmental programme of any country on Earth". In this next session, the Bill should hopefully complete the Report Stage and head to the House of Lords for full scrutiny.
How is the Bill going to impact on our built environment? Here are 5 take-aways:
- Conservation Covenants: it provides for the introduction of "conservation covenants". These are to be private, voluntary agreements between a landowner and responsible body (for example a conservation charity or public body) which may be positive obligations (to do something) or restrictive obligations (not do something) relating to the land for a conservation purpose for the public good. This conservation purpose and public good element differentiates them from other private interests in land such as easements. However, as these "conservation covenants" can (and will, unless drafted to the contrary) run with the land and bind subsequent landowners, they have the potential to deliver long-lasting conservation benefits. There will be no restriction on the number of covenants on one plot of land (and there could be multi-landowner covenants over adjoining land) and they will be recorded on the local land charges register. The Government will provide guidance to local authorities and responsible bodies to ensure consistency in registration.
- Biodiversity Net Gain Planning Condition: it will establish a new general condition to *all* planning permissions in England that a biodiversity gain plan must be submitted and approved by the local planning authority before development can commence. The plan must include information about steps to minimise any adverse effect of the development on the biodiversity onsite or offsite/nearby, amongst other things. There will also be a mandatory requirement for developers to provide 10% biodiversity net gain in respect of any new development under the Town and Country Planning Act 1990 which would result in loss or degradation of habitat. This means that the local authority can only approve the plan if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. (Biodiversity value is measured by Defra's biodiversity metric – first you identify site boundaries, divide the site into parcels of different types of habitat and input information about habitat type, condition and size of the habitat. The metric assesses the quality of the site based on habitat distinctiveness, condition, connectivity and strategic significance. The calculated value is then translated into "biodiversity units". So if your site was worth 50 biodiversity units pre-development, it should as a minimum be worth 55 at the end). The intention is that this scheme will incentivise on-site or local creation or enhancement of habitats. Where this is not possible in the local area, developers will be able to invest in nationally strategic habitats through a system of statutory biodiversity units. There may be other exemptions.
- Local Nature Recovery Strategies (LNRS): there will be a requirement to create LNRS to cover the whole of England to support better spatial planning for nature. Each LNRS will include a statement of biodiversity priorities for the area and a local habitat map identifying opportunities for enhancing or recovering biodiversity. These will be produced locally and will inform the town and country planning process by supporting plan-marking.
- Tree felling: the Bill is to introduce a new local land charge where illegal felling of trees has taken place in England. Felling of trees without a felling licence (where required) is illegal but is unfortunately apparently on the increase (with the main driver not being for value of timber but to take advantage of the development value of land). This new land charge will make a Restocking Notice for trees from the Forestry Commission visible to any prospective buyer and binding on them if they bought the land. The courts may also be given power to order land owners to replant trees following the Forestry Commission's replanting directions following an illegal felling (non-compliance could face a fine and/or custodial sentence). There is to be a new duty on local highway authorities (in England) to consult the public before felling street trees.
- Smoke Control Areas: Local authorities are to be empowered with the ability to impose civil penalties for the emission of smoke in smoke control areas in England (currently proposed as a minimum penalty of £175 and maximum of £300) – this will replace the criminal offence of emitting smoke from a chimney in a smoke control area and thus allows for the current statutory defences to be removed, making enforcement easier. The exemption in the Environmental Protection Act 1990 will also be removed so that smoke emitted from a private dwelling in a smoke control area can be enforced as a statutory nuisance.
This is just a snapshot of the Bill as it contains a wealth of important environmental provisions. Environmental principles are to be central to policy development across government and in particular these will emphasise the importance of sustainable development (i.e. development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs). With the establishment of the Office for Environmental Protection, (to be located in Bristol – in part – employing up to 120 people) the Bill aims to provide a "world-leading environmental watchdog" responsible for taking action in relation to breaches of environmental law and holding the Government to account on its commitment to reach net zero by 2050.
In the year when The Rt Hon Alok Sharma MP has been appointed full-time President for COP 26 (the 26th United Nations Climate Change Conference) – this Bill is a key piece of legislation to underpin environmental preservation and protection in the UK.