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Environment Act 2021 and new biodiversity considerations for developers

19 November 2021

With COP26 filling the news headlines it would seem fitting that the Environment Bill, designed to drive a huge change in the protection and enhancement of our own natural resources, has finally achieved Royal Assent. The Act came into force on 9th November. For developers, one of the biggest changes will be the need to more widely consider biodiversity when making planning or development consent applications. 

The Environment Act 2021 (EA 21) inserts a new Schedule (Schedule 7A) into the Town and Country Planning Act 1990. Planning permissions will soon need to have a new biodiversity condition included that grants permission subject to the submission and approval of a biodiversity gain plan. A new Schedule 2A is also inserted into the Planning Act 2008 to extend the biodiversity gain obligation to development consents for nationally significant projects, such as future transport and energy projects. These changes will come into effect as soon as secondary legislation is enacted. 

To assess biodiversity, a metric will be used to assess habitats on site pre and post development with the aim to deliver a net gain enhancement of at least 10% in quality or quantity of the habitat. A calculation tool is available at Natural England's website (The Biodiversity Metric 3.0 - JP039 (nepubprod.appspot.com). The biodiversity enhancement can be delivered either on site or off-site via a biodiversity credit system. However, regardless of how the biodiversity net gain is provided, the enhancements must remain in place for 30 years. 
Valuing and enhancing biodiversity is not a new policy as the principle of using planning policy to secure enhancement to the natural environment has been a consideration since the inception of the National Planning Policy Framework in 2012. However, the EA 21 takes this one step further by requiring that most new developments will have to not only actively avoid or rectify (neutralise) any habitat destruction/disturbance but also positively enhance them. The new requirements will not apply to any development on Crown land or a development of such other description as the Secretary of State may decide by subsequent regulations (likely to include permitted development, householder applications, residential self-builds and brownfield sites).
Concerns had been raised about the possibility of land owners intentionally reducing the pre-development biodiversity value of sites to be developed (eg. by clearing sites of any habitat before applying for planning permission). In response, the pre-development biodiversity value for the site is measured as at the date of the planning application (or earlier if agreed between the applicant and the local planning authority). However, if activities have been carried out on the land on or after 30 January 2020, without planning permission, which has reduced the biodiversity value of the onsite habitat, the biodiversity value will be taken to be that which was in place immediately before those activities. Further guidance is expected about how this will work in practice and may prove challenging to monitor.
The EA 21 does not just tackle biodiversity issues. It also aims to clean up air quality, crack down on sewage discharge, restore natural habitats, reduce waste, tackle deforestation overseas and encourage a more circular economy to make better use of resources. There are also legally binding targets on species abundance that need to be achieved by 2030. For example, to help reverse declines in hedgehog, red squirrel and water vole populations. All these changes are backed by new legally binding environmental targets, which will be enforced by a new Office for Environmental Protection. The changes will have wide ranging implications across sectors for all parts of the supply chain industry-wide, including commercial operations, manufacturing, retail, transport, energy, natural resources and public sector services. DWF will be reporting on the sector specific implications shortly.

If you have any questions arising out of this article, please contact Stephanie Smith or Andrew Batterton.

Further Reading