NOTES ON THE ENVIRONMENT BILL
Some time ago, I participated in a webinar
about the Environment Bill. It was a
short introduction to some planning aspects of the Bill. These notes are by way of a short summary of
the points made in the webinar.
The webinar focused upon the planning
and development aspects of the Bill only and was limited to England only. In broad terms it went from general to
particular; namely, from national policy to development control.[1]
The starting point being, of course,
national policy. I then went on to look
at what I described as “Local Biodiversity Reports” and then to consider the
impact of the Bill on development control.
I hasten to add that the label “Local Biodiversity Reports” was my own
label and did not figure in the Bill.
The Bill introduces certain overarching environmental
policies. Arguably, they will filter
down to both local plans and development control.
Clause 16 of the Bill requires the
Secretary of state to prepare a “policy statement on Environmental Principles”.
Clause 16 (2) states that the policy
statement on Environmental Principles is a statement explaining how the “Environmental
Principles” described in the Bill should be interpreted and proportionately
applied by Ministers of the Crown when making policy.
There is, of course, a question of what
this statement will look like; and,
fortunately, we already have a head’s start.
This is the document produced in 2018 and which is called “Policy Statement
on Environmental Principles”. It was the
government’s 25 year policy plan on the environment. Future iterations of the policy statements
for the Bill are likely to be based upon this 25 year plan.
Clause 17 (5) provides that the “Environmental
Principles” are as follows:
(a)
environmental protection should be integrated
into the making of policies,
(b)
the taking of preventative action to avert environmental
damage,
(c)
the adoption of a precautionary principle so far
as relating to the environment,
(d)
environmental damage as a priority be rectified
at source, and
(e)
and the polluter pays principle.
Arguably, these principles will filter
down to local plans and, then, into development control.
Clause 18 (1) provides that a minister must, when making policy, have regard to the policy statement on Environmental Principles
currently in effect. Clearly, the
Minister of Housing, Communities and Local Government is such a minister; and this minister produces the National
Planning Policy Framework. Those local
planning authorities which will be preparing their development plans after the Bill
becomes law will do so having regard to the NPPF. The NPPF will, as I have indicated, be
prepared having regard to the policy statement on Environmental Principles
currently in effect. One can, therefore,
see a linkage between the, then, current version of the 25 year plan and the
formulation of development plan policies by way of the NPPF. These development plan policies will, in
turn, inform day to day development control decision-making. Accordingly, whilst the Bill will create an overarching
general environmental leitmotif, it will also trickle down to development
control.
Arguably, the Bill will also have a more
direct effect on development control. As
noted above, the Environmental Principles include preventative action to avert environmental
damage and the adoption of the precautionary principle. One can readily see of these principles being
applied directly to development control decision-making. For example in connection with applications
for the development of contaminated land.
Also, in connection with planning enforcement.
This now takes us to what I have described
as “Local Biodiversity Reports”. As I
say, the phrase “Local Biodiversity Report” is my own label and is not in the Bill.
It is necessary, before delving down into
this particular topic, to digress into the background to it.
This has to do with the Natural Environment
and Rural Communities Act 2006; and, in particular, section 40(1) of the 2006 Act. This provides as follows:
“a
public authority must, in exercising its functions, have regard, so far as is
consistent with the proper exercise of those functions, to the purpose of
conserving biodiversity.”
Section 40 (3) goes on to provide:
“conserving
biodiversity includes in relation to a living organism or type of habitat, restoring
or enhancing a population or habitat.” (emphasis added)
It can be readily seen is that the word
“conserving” is a term of art with an extended meaning which includes
restoration and enhancement. This extended
meaning is important in the current context and I will return to it in a
moment. But first, it is necessary to
return to the Bill itself.
Paragraph 814 of the explanatory notes
refers to clause 89 of the Bill. Clause
89 introduces a “general duty to conserve and enhance biodiversity”. This paragraph of the explanatory notes
states that clause 89 “makes textual amendments to section 40 of that Act, to
avoid repeating definitions”. Paragraph
or 817 of the notes then goes on to say:
“This
extends the duty of public authorities beyond the NERC Act, which referred only
to conservation, so that it includes the enhancement of biodiversity in
England. The aim is to provide for
enhancement or improvement of biodiversity, not just its maintenance in its
current condition.”
The problem with these paragraphs from
the explanatory notes is that they are, quite simply, wrong !
It is completely wrong to say that section
40 of the 2006 Act is limited to conservation only or the maintenance of a site
in its current condition. Section 40 (3)
of the 2006 act clearly states that “conservation” includes restoration
and enhancement. As I say, this
aspect of the notes is completely wrong.
Paragraph 815 of the notes add insult to
injury by saying that the heading of the biodiversity duty in the 2006 Act is, therefore, changed from “conserving” to “conserving and enhancing” biodiversity.
Be that as it may, the reality is that
section 40 of NERC Act 2006 will be scrubbed and replaced by biodiversity
reports. It remains to be seen whether
this revised approach is a good thing or a bad thing. Arguably, it is a step backward for those who
are interested in such matters and who may have been hoping, instead, for a
step forward.
Clause 94 of the Bill sets out the “General
Biodiversity Objective”. The “General
Biodiversity Objective” is the conservation and enhancement of biodiversity in
England through the exercise of functions in relation to England.
The local authority will be required to
produce a Local Biodiversity Report. The
report must show that the General Biodiversity Objective has been met. In seeking to discharge its duties, the local
authority it must provide and adopt policies which pursue the General
Biodiversity Objective. It is not clear
whether it is intended that those policies will relate to site specific
applications. Also, it is unclear
whether there are any robust site specific enforcement mechanisms.
Development
control
Turning now to development control.
It is important to consider the matter of
“biodiversity net gain” before going on to look at the way in which this concept
is integrated into day to day development control mechanisms.
The notion of “biodiversity net gain” is an
extremely difficult concept. This is
because it is, to put it mildly, very difficult to categorise and then quantify
those things which are said to contribute to “biodiversity”. It is, perhaps, right to say that one
ecologist’s view of the importance of certain site features might differ
considerably from those of a different ecologist depending upon differences in their
particular areas of expertise or interest.
Yet, somehow, one must, if one is seeking to identify and measure the
qualitative value of a site in terms of biodiversity, come up with some form of
methodology. This is to say, it is
necessary to come up with a “metric” which has a good degree of consensual
acceptance within the field of ecology.
However, before looking at the notion of a metric, one must back to basics. This means reminding ourselves of the “mitigation hierarchy”. I have set out a short diagram below:
If one comes to the point of “compensation”
then, in reality, one is considering compensation by way of “off-set”. By “off-set” one is referring to the
provision of some form of habitat on land outside the application site by way
of compensation for the habitat which will be lost as a result of the
development or by way of the enhancement of habitats within the site. If one is looking for
“biodiversity net gain”, then any off-set must not only compensate for lost
habitat would also provide for additional habitat. However, stating this in general terms is not
particularly productive in the context of development control, because it is
necessary to provide some degree of quantification to the process. This means looking not only to “biodiversity
net gain” but also to measurable gain.
This takes us to current national policy in the NPPF. Paragraph 170 provides:
Planning
policies and decisions should contribute to and enhance the natural and local Environment
by:
a)
protecting and enhancing valued landscapes, sites of biodiversity or
geological value and soils (in a manner commensurate with their statutory
status or identified quality in the development plan); . . . .
d)
minimising impacts on and providing net gains for biodiversity,
including by establishing coherent ecological networks that are more resilient
to current and future pressures; (emphasis added)
Paragraph 174 goes on to say:
174.
To protect and enhance biodiversity and geodiversity, plans should:
. . .
.b) promote the conservation, restoration and enhancement of priority
habitats, ecological networks and the protection and recovery of priority
species; and identify and pursue opportunities for securing measurable net
gains for biodiversity (emphasis
added)
Paragraph 174 is, therefore, seeking to
incorporate the notion of measurable net gain into something which should be
pursued by a local planning authorities.
Paragraph 175 adds:
175.
When determining planning applications, local planning authorities should apply
the following principles:
a)
if significant harm to biodiversity resulting from a development cannot be
avoided (through locating on an alternative site with less harmful impacts),
adequately mitigated, or, as a last resort, compensated for, then planning permission
should be refused; . . .
d)
development whose primary objective is to conserve or enhance biodiversity
should be supported; while opportunities to incorporate biodiversity
improvements in and around developments should be encouraged, especially where
this can secure measurable net gains for biodiversity. (emphasis
added)
This, then, brings us back to the difficult
question of how one values biodiversity.
Measurable
net gains for biodiversity – a metric
The notion of measurable net gains for biodiversity
is, in theory, an attempt to invoke the measurement of that which is inherently
immeasurable. It puts one in the
position of having to trying to measure the immeasurable. However, the alternative is to sit back and
do nothing. It might be the case, and
indeed probably will be the case, that the best one can do is to provide a rude
and subjective approximation. The chosen
instrument for attempting this feat is known as “biodiversity metric”.
The generally accepted biodiversity metric
for the purposes of town and country planning is set out in a system called
“The Biodiversity Metric 2.0”. This is a
fairly complicated system for those new to the concept, therefore, it is
useful to start with less complicated documents. The one such document arises from a pilot
study which is carried out in 2012 entitled a “Biodiversity Offsetting Pilots,
Guidance for Developers”. This document
being part of a short series of similar documents.
One of the tables set out in this document provides an example of the way in which the metric operates. The approach is to evaluate the habitat according to certain specified criteria. The ecological features and condition of the habitat are evaluated and given a notional weighting. Those weightings are then totaled together to provide a value for the habitat expressed in the “Biodiversity Units”. It is this value which is taken as measured values for the purposes of this exercise.
This can be seen by going through the shown example on the step by step basis. First, the habitat is shown as being “lowland meadow” and comprises an area of six hectares. Secondly, the “distinctiveness” of the habitat is weighted on a scale from 1 to 6 and, here, the weighted value is given as 6. Thirdly, the denominator “condition” is, again on a scale from 1 to 6, given a weighting of 2. Finally, the values provided in these columns are totaled to provide 72 Biodiversity Units.
Biodiversity
credits
If it is possible to arrive at a value for
a site (expressed in terms of Biodiversity Units), then it is possible to go on
and consider the concept of biodiversity credits. If one goes back to the example given above,
then, the notional development will result in the loss of 72 Biodiversity Units. If the object of the exercise is to ensure
that there is no net loss of Biodiversity Units, then, one is probably thinking
in terms of some form of replacement habitat outside of the site. That is to say, habitat “off-set”. It is natural to assume that this off-set can
be provided by way of one site; however, the notion of “biodiversity credits”
provides for a more sophisticated approach.
It might be the case that there is no nearby site available at the appropriate
time to act as the receptor site for this off-set. One alternative is for the developer to
provide the monetary wherewithal for the creation of biodiversity gain and then
for the developer to leave it to an appropriate body to use that money to achieve
that objective. Which brings us to the
notion of a ‘biodiversity credit bank’, in this case being that the Secretary
of State. The notion being that the
developer will, instead of providing physical offset, purchase biodiversity
credits from the Secretary of State who will, in turn, use the monetary
equivalent of those biodiversity credits to provide for habitat creation or enhancement of his
choosing. It might, for example, be the
case that the Secretary of State will pool multiple contributions to, thereby, provide
for a more significance scheme than would be provided by a number of separate
small scale schemes.
Section 92 of the act makes provision for
the use of biodiversity credits. Paragraph
1567 of the explanatory notes provides:
“Paragraph
22 makes provision for the Secretary of State to set up a system to sell a
supply of statutory biodiversity credits to the habitat compensation
market. . . . .The sold credits will be
equivalent to a specified gain in biodiversity value, which will be
eligible for inclusion in a Biodiversity Gain Plan. . . “
Conservation
covenant agreements
The Bill introduces the notion of 'Conservation Covenant
Agreements'. These are not particular to town and country planning. Indeed, it is arguable that this mechanism
adds nothing to the conventional planning obligation pursuant to section 106 of
the Town and Country Planning Act 1990.
As its title implies, a Conservation
Covenant Agreement is a document which is entered into by a landowner for the
purposes of environmental conservation.
The purposes of a Conservation Covenant Agreement may include:
(a) to conserve the natural environment of land or the natural resources of land,
(b) to conserve land as a place of
archaeological, architectural, artistic, cultural or historic interest, or
(c) to conserve the setting of land with
a natural environment or natural resources or which is a place of
archaeological, architectural, artistic, cultural or historic interest.
The agreement will be entered into by the
landowner with a “responsible person”. A
responsible person is a body nominated by the Secretary of State and will not,
necessarily, by the local planning authority.
Whilst Conservation Covenant Agreements clearly have a role to play, it is difficult to see how they will be of any particular advantage in town and country planning when set against a conventional Section 106 Agreement. The same risk factors applied to both mechanisms.
The first question is always whether the developer is capable of delivering
in any event. Then there is the matter
of determining how maintenance mechanisms can be set and, as always, whether
appropriate long term financial stability can be provided. None of these problems are new and none of
them are somehow magically solved by the use of Conservation Covenant Agreements. Inevitably, the starting point is a series of
promises from the developer and it is up to the local planning authority to
consider time-honoured methods of security such as bonds and management
companies. It makes no difference
whether these matters are considered within the context of a Conservation
Covenant Agreement or a Section 106 Agreement.
These are matters which need to be considered and dealt with.
The
biodiversity gain site register
One’s initial reaction to clause 91 of the Bill
might be to say “not yet another register”, but it is worth pausing to consider
this particular register. The register
will list biodiversity credits, conservation covenants and planning
obligations. These will feed into the
new statutory biodiversity condition which I will mention now
The
biodiversity gain condition
Clause 19 and Schedule 14 of the Bill
contain provisions relating to biodiversity gain as a condition of planning
permission. The condition is that the
development may not be begun unless
(a) a “Biodiversity Gain Plan” has been
submitted to the planning authority and
(b) the planning authority has approved
the plan
This takes effect as a ‘Grampian’ type
condition and, as such, has the effect of imposing an embargo on commencement
of development until the condition has been discharged.
The Biodiversity Gain Plan must comply with
the “Biodiversity Gain Objective”.
Schedule 14 provides that the Biodiversity Gain Objective is met if the
biodiversity value attributable to the development exceeds the pre-development
biodiversity value of the onsite habitat by at least the “relevant percentage”. This slightly complicated provision has to be
unpacked.
This takes one back to evaluating the
biodiversity value of the site, both pre-development and post-development, by
reference to a metric.
The relevant percentage is, initially, set at 10%. However, the Secretary of State may, by regulations, amend this so as to change the relevant percentage. This would suggest that the Secretary of State has the ability to set different percentages for different types of sites or developments.
Turning back to the Biodiversity Gain Plan,
this must include:
·
any registered offsite biodiversity gain
allocated to the development and the biodiversity value of that gain, and
·
any biodiversity credits purchased for the
development.
As noted above, these are matters which
will be recorded in the biodiversity register.
Summary
In summary, therefore the enactment of the Environment
Bill will change national policy, local policy and development control. In terms of national policy, the 25 year plan
will be an overarching policy which will feed into the NPPF. In turn, the NPPF will influence the content
of local development plans, thus, the 25 year plan will filter down to those
local plans. As to development control,
the Environmental Principles may make local planning authorities more proactive
in a matter of biodiversity. In any
event, the new biodiversity gain condition will force improvements in
biodiversity by way of day to day development control.
[1] I would add that my approach to seminars is to try say
everything three times, but in three different ways. The theory being that this enhances the
reception and reinforcement of ideas.
Given their provenance, these notes are thus less linear than a bespoke
written narrative would be. Ergo, the
repetition and overlaps are deliberate !
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