Intelligence: 31 October 2019The Environment Bill: Legal Update

The final version of the Environment Bill (The ‘Bill’) was put before Parliament by the Queen on Monday 14 October 2019. It had its first reading on 15 October.

Prime Minister Johnson described the Bill as a “lodestar by which we will guide our country towards a cleaner, and greener future”.

The story in short….

The Bill has outlined new legally binding targets, including for air quality. The Office for Environmental Protection has been set up as an accountable body to fill the void left post-Brexit. We can also see that Biodiversity Net Gain requirements have the potential to be burdensome for developers who seek to develop on species rich areas, with the possibility of off-setting alleviating these hurdles.

Although this Bill is one of the most important pieces of primary legislation focusing on the environment for the past decade, at the time of writing we are likely to see a General Election before it makes its way through the Houses of Commons and Lords and receives Royal Assent. The prospect of it becoming binding as an Act is, therefore, uncertain.

More detail….

The scope of the Bill is far reaching and includes:

Setting environmental targets, monitoring and improvement plans - The Bill legislates that the Secretary of State must prepare an environmental improvement plan, with the aim to significantly improving the natural environment. The current environmental improvement plan is “A green future: our 25 year plan to improve the environment”.

Adopts key environmental principles derived from the EU into UK law - One purpose of the Bill is described as: “to transform our domestic environmental governance based on environmental principles; codify a comprehensive framework for legally binding targets; and the establishment of a new Office for Environmental Protection”.  In effect, the Bill aims to replicate a set of overarching EU principles into UK law. This includes the precautionary principle and polluter pays principle.

Establishes the Office for Environmental Protection and outlines its duties - The Office for Environmental Protection (OEP) is a new regulatory body to provide a ‘consistent, long-term, independent body on the environment’, aiming to create a framework of accountability for environmental degradation within UK law. However, critics have noted the irony in a public-sector body tasked with holding other public-sector departments to account, being funded by the Government. Questions are further raised over how the OEP will effectively engage with civil society.

Sets requirements for waste management - Circular economy principles feature throughout the Bill, with schemes such as levies on specified single use plastic items (similar to the single use plastic bag charge) included. The notion of extended producer responsibility, previously enshrined in EU Environmental Law, is also transposed into UK domestic law through this Bill.

Amends the local air quality management framework - Under Schedule 12 of the Bill, national air quality strategies are to be reviewed every five years, with the Secretary of State having a duty to report to Parliament on the progress made towards meeting air quality objectives and what steps have been taken to meeting these objectives. Some novel powers given relate to the ‘Volkswagen scandal’ where emissions results were falsified, hence the Secretary of State has the ability to recall relevant motor vehicle products which do not meet relevant environmental standards.

Makes provision for water resource and drainage management - Water resources management plans as well as drainage and sewerage plans are to ensure the sustainable use of water is maintained. Water companies can be directed to work together to ensure current and future demand for water is met, as well as the Secretary of State given extended powers to regulate the water quality.

Requires biodiversity net gain as a condition of planning permission - The Environment Bill also mandates for the provision of a ‘biodiversity net gain’ to new developments. Schedule 15 of the Bill requires that every planning permission granted for the development of land in England must be subject to the developer submitting a biodiversity gain plan to the planning authority, with the planning authority having approved the plan. The Environmental Bill will require developers to ensure habitats for wildlife are enhanced, with a 10% increase in habitat value.

Biodiversity gains registered off-site can also be part of this percentile increase in value, subject to qualifiers such as through obligations under a conservation covenant or planning obligation.

Requires strategies for local nature recovery - Further protection for natural habitats is provided through the Bill’s Local Nature Recovery Strategies. These strategies focus on England, with the responsible authority (ranging from Local Authority, Mayoral authority, National Park authority etc.) to set out a statement of biodiversity priorities for the strategy area, including a local habitat map. Strategies must also include opportunities and constraints for enhancing biodiversity within the local area, with priority habitats and species outlined. There is also provision for greater protection of local trees.

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