Environmental Law News Update

BNG and planning – do they really know what they are doing?

The willing introduction of bureaucratic complexity is unusual in the current age.  However, developers in England are now faced with the legal requirement to ensure that the biodiversity value of their new development will increase by at least 10% – as calculated according to a prescriptive matrix.  Pursuant to the Environment Act 2021, this became part of the Town and Country Planning Act 1990 in February 2024, with the introduction of a new section 90A and Schedule 7A.  It will apply to all new development, large or small, from 2 April. It is in addition to other statutory regimes, including Environment Impact Assessment and Habitat Regulations Assessment.

The effect in England – and it is England only – is that what was once a policy target has become a rule. Subject to some important exceptions, every planning permission for the development of land is now deemed to be granted subject to a new condition. The condition requires a Biodiversity Gain Plan to be submitted by the local planning authority before development can lawfully be begun.  A draft can be submitted with the application, but it will only be formally considered after permission is granted. Development may not be begun until the Biodiversity Gain Plan is approved.  These Plans must contain an assessment of the value of natural habitats before development and after development, and demonstrate that at least a 10% net gain will be achieved between the earlier and later values.  Any significant increase must also be legally secured for at least 30 years after the ‘completion’ of the habitat enhancement works by planning condition, section 106 agreement, or conservation covenant.

The BNG exemptions will therefore become very important, covering permitted development rights, householder development, self-build, and any section 73 amendment of an existing permission. There is also a ‘de minimis’ exemption, for developments which impact less than 25 square metres of onsite habitat, or 5 metres of linear habitats such as hedgerows.  Whilst that will cover sites with zero biodiversity interest, there is no exemption for brownfield land, even if the final form of redevelopment is unknown.  The provisions that allow for phased development will be crucial to ensuring proper long term flexibility.

The possible pitfalls are numerous – for instance, that the matrix can only be completed by a ‘competent ecologist’, that this is only about habitat and not species, that land in Scotland cannot be used to offset development in England, that biodiversity units provided on land outside the LPA boundary is worth ¾ or even ½ the value of onsite provision. There are no entries on the BNG Register yet. Conservation Covenants are great in legal theory, but currently the only ‘responsible body’ who can sign one for you is Natural England. There are still no model paragraphs or section 106 agreements. The system still feels incomplete. For those looking for some hope, the good people at the Planning Advisory Service have been busy providing online help: https://www.local.gov.uk/pas/environment/biodiversity-net-gain-local-authorities/biodiversity-net-gain-development

Environment Agency accept £50,000 Enforcement Undertaking

Following an investigation into a burst pipe that polluted Monkton Burn in Jarrow in August 2020, Northumbrian Water submitted an Enforcement Undertaking to the Environment Agency (“EA”), which was accepted last week.

The facts can be stated very briefly. In August 2020 the EA were informed that a water main had burst causing the watercourse to be contaminated with silt and chlorine. The pipe that burst supplied approximately 8,500 properties in Sunderland. The day after the report was made an officer from the EA inspected the area and found extensive deposits of silt on the banks and bed of the Burn. The extent of the pollution was more than 500 metres.

Following the incident Northumbrian Water repaired the section of the damaged pipe and installed temporary pollution measures.

The £50,000 will be paid to Tyne Rivers Trust and be used on two projects which will improve the Tyne catchment, including changes to land management practices and work to improve water quality.

Enforcement Undertakings are a useful tool for the EA (and other regulators) and those who have committed environmental offences. From the perspective of the regulator, liability is accepted by the person who has committed the offence and the monetary remedy is obtained without recourse to litigation. Similarly, the benefits to the person implicated are obvious – the cost benefit of not going to court, the avoidance of a criminal conviction and the additional PR advantage of highlighting that they are responsible, contrite and willing to work positively with community organisations and charities.

Those wishing to invite the EA to accept an Enforcement Undertaking should be proactive, accept liability and propose an offer that rectifies the consequences of the conduct. The EA’s policy regarding accepting Enforcement Undertakings can be found here.

SSSIs and Special Scientific Interest (Designation) Bill

After the decision by Natural England to designate 3,044 hectares of the West Penwith Moors and Downs as a Sites of Special Scientific Interest (“SSSI”), described by Natural England as some of the country’s wildest and most dramatic nature rich habitat in the UK, Derek Thomas MP the Conservative MP for St Ives introduced the Special Scientific Interest (Designation) Bill under the Ten Minute Rule, which proposes to remove powers of designation from the public body.

Mr Thomas MP explained that the bill would “transfer the power to designate sites of special scientific interest from Natural England to the Secretary of State [and] make provision about the exercise of that power by the Secretary of State.”

The bill would alter the current system for notification as set out in the Wildlife and Countryside Act 1981, section 28, whereby Natural England makes a notification if it is of the opinion that “any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features.”

The proposed change would mean that Natural England would identify sites for designation and collate the data and scientific evidence but “it would be for the Secretary of State for Environment, Food and Rural Affairs to interrogate this evidence and decide whether Natural England is correct in its assessment.” The bill would also give the Secretary of State the power to consider other factors in designation beyond those identified in the existing statute, namely the social, cultural and economic implications of notification.

The bill is supported by a number of MPs with significant experience in this area, including Thérèse Coffey, former secretary of State for Environment, Food and Rural Affairs; Trudy Harrison and Robert Goodwill, both former DEFRA ministers, Mr Goodwill being Chair of the Environment, Food and Rural Affairs Committee, and Philip Dunne, Chair of the Environmental Audit Committee.

As of 21 March 2024 the bill has yet to be published, with a Second reading due on 26 April.

Comment

It is interesting that the bill was introduced under the Ten Minute Rule. Such bills, which allow the member a 10-minute speech to introduce the bill, are a useful mechanism for generating debate about an issue but few become law. Like all bills, if the bill is not printed before Second Reading then it cannot progress. We therefore await the printing of the bill to see whether this proposal for a significant change to the way that SSSIs are designated proceeds or was primarily designed to draw attention to Natural England’s West Penwith SSSI designation.