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What does the Environment Bill mean for the Development Sector?

17 November 2021

After a little last-minute wavering on some fairly fundamental matters with huge implications for planning, the line has been drawn and we have law in place to set parameters as to how the environment should be protected.

Charlotte Parry Associate Newcastle

By now, you’ll most likely be aware that the long-anticipated Environment Bill has become law (as of 9th November 2021). 1,056 days after first entering Parliament, some of the contents of the Bill has come as no surprise to us in the sector. In fact, various elements have felt like long-adopted policy for a while now, rather than brand new law (the Biodiversity Net Gain requirement springs to mind). But, after a little last-minute wavering on some fairly fundamental matters with huge implications for planning, (such as whether the ancient woodland buffer should increase from 15m to 50m – which ultimately wasn’t carried forward), the line has been drawn and we have law in place to set parameters as to how the environment should be protected. What we have tried to unpack a little further here though is how this affects planning policy in an era of increased awareness about climate change and the environment.

General Comments

Whilst biodiversity net gain is very much the buzz phrase which has picked up a lot of traction within the sector, the Bill puts an overarching requirement on applicants to consider environmental issues further than previously, which in planning application terms, is likely to result in greater scrutiny of submission documents and the need to closely examine factors such as air quality, drainage, landscaping, and ecology pre-determination, rather than waiting for conditions to arise.

We will have to wait and see how this trickles down through the local plan policy drafting and validation requirements in due course, but developers should certainly prepare for greater upfront information being requested. Perhaps the Environment Bill will help align the rest of the nation’s environmental requirements with those expected when submitting a planning application in London – will we be seeing Urban Green Factors sought across the board? Only time will tell with on that, I’m afraid.

Biodiversity Net Gain

Whilst the requirement for 10 per cent biodiversity net gain has been a core feature of the Environment Bill from the outset, the delivery mechanism for securing this is less well known. The adoption of the Bill will now result in an amendment to the 1990 Town and Country Planning Act, requiring all planning permissions (with some exceptions) to have a planning condition stating that development cannot begin until a biodiversity net gain plan has been submitted and approved.

The Bill sets out the requirements for the plan, which include measuring the sites pre and post development biodiversity value to ensure at least a 10 per cent increase on pre-development ‘onsite habitat’. The pre-development habitat is to be measured before any works that could lower the biodiversity value have taken place.

Where alternative premises to the development site itself are to deliver the biodiversity gains, these will be secured by way of a ‘conservation covenant’ or planning obligation. As with the on-site requirement, the enhancements must be maintained for at least 30 years.

Biodiversity credits can also be purchased by developers to enable them to meet this requirement, the funds generated will be used to fund habitat enhancements in England. The price of credits is yet to be confirmed.

In terms of hierarchy of mitigation, on-site is most preferred, followed by off-site and financial contribution in that order.

A public register of sites will also be established, helping to add transparency and ensure there is no double counting of sites.

Local Nature Recovery Strategies (LNRS)

There is now a requirement for councils to prepare and publish LNRS in England. A map of existing nature assets will identify important opportunities for enhancements and the tool can be used to identify nature recovery and establish priority protection and opportunity areas. These tools will help aid appropriate locations for development.

LNRS will be developed by ‘responsible authorities’, but who they are has yet to be specified.

The RTPI believe that the Planning Inspectorate should be the body for resolving disputes in the preparation process. All in all, it is still unclear as to how LNRS will be established in practice and how they will aid LPAs to protect vulnerable areas and guide development.

Environmental Watchdog

The Office for Environmental Protection (OEP) has been established by the Bill, which will be responsible for holding governments and public organisations to account on environmental matters of concern. The public body is designed to assume the role of the European Commission after it ceases to have jurisdiction. It is expected that the OEP will cover Environment Impact Assessment and Habitats Regulations Assessments.

Concluding remarks

The transition into planning policy is yet to be announced, but it seems likely that a revision to the NPPF will be required, even after its most recent amendment in July. Will supplementary planning documents be prepared by LPAs to introduce these measures? Local plans which are being prepared now are, in many instances, already looking to pick up on the Biodiversity Net Gain requirement, but LNRSs seem to have picked up less traction at a local level so far. One thing that we’re all unsure on is how this will deliver increased housing supply in a sustainable and environmentally friendly way. We’ll get back to you on that!