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.

 

 

 

 

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[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 !