TPP Guide to The Environment Act 2021

What is it?

The Environment Bill received Royal Assent in the House of Lords and was passed into law on 9th November 2021. The Environment Act 2021 overhauls and replaces EU environmental frameworks and now represents the UK’s own domestic environmental law with measures intended to protect and enhance the natural environment.

Whilst none of the relevant sections of the Act are currently in force, they are likely to be brought into effect in the coming year as the necessary regulations are put in place. The following is a brief summary of the main effects for parties involved in planning.

Main provisions of relevant to planning

1. New general pre-commencement condition

The Environment Act 2021 amends the Town and Country Planning Act 1990 so that (subject to any transitional provisions contained in regulations) all planning permissions granted after the provisions come into force are deemed to be subject to a condition prohibiting the start of development before a biodiversity gain plan has been submitted to and approved by the Local Planning Authority. The biodiversity gain plan must demonstrate a net gain of at least 10% in the biodiversity value of the development site “as at the time the development is completed”, which is to be managed for at least 30 years.

Exceptions - Once the relevant provisions come into force, the biodiversity condition will be deemed included on every planning permission for development in England, subject to some exceptions. To date, these include:

• Permissions granted by development order, for urgent Crown development or for other development prescribed by the Secretary of State will be exempt.

• There is no requirement for a general condition to be deemed included in Development Consent Orders (DCOs), but the Act includes equivalent provisions for 10% biodiversity net gain to be applied to nationally significant infrastructure projects consented through the DCO regime.

It is anticipated that the Secretary of State will expand the exempt categories through regulations, but it is not clear yet what categories these might be.

2. Biodiversity Net Gain

Part 6 of The Environment Act 2021 introduces a mandatory requirement for Biodiversity Net Gain (BNG) to mitigate the impact of a development. Biodiversity Net Gain is an approach to development, such as a new building or construction, that leaves biodiversity in a better state than before. Where a development has an impact on biodiversity, developers will need to provide an increase in appropriate natural habitat and ecological features over and above that being affected.

All new proposals must feature at least a 10% improvement to biodiversity. Planning authorities can only approve the biodiversity gain plan if the biodiversity value attributable to a development exceeds the pre-development biodiversity value of the onsite habitat by 10% which, for the purposes of the legislation, is known as the ‘biodiversity gain objective’.

It is understood that the latest Biodiversity Metric 3.0 is to be utilised to calculate net gain requirements. This metric enables all stakeholders to assess changes in biodiversity value facilitated by development or alterations in land management.

The biodiversity plan must set out the steps taken to achieve the ‘biodiversity gain objective’, which could be through minimising the adverse effects of the development on habitats, the identification of the pre and post development onsite biodiversity value, details of registered offsite biodiversity value allocated to the development and biodiversity credits purchased, and any other information that may be required by regulations.

Other tools include Conservation Covenants which are set out within Part 7 of the Act. These are voluntary but legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body or for-profit body to conserve the natural or heritage features of the land. Conservation covenants will act as a potential alternative to planning obligations and can be used to secure the benefits delivered by biodiversity net gain and other measures for the long term.

Accordingly, developers will soon have to incorporate a Biodiversity Gain Plan in conjunction with planning application submissions, with legislation stipulating that the development may not be begun until the biodiversity gain plan has been submitted and the Local Planning Authority has subsequently approved the plan.

There will be a 2-year transitional period before Biodiversity Net Gain becomes mandatory. However, Biodiversity Net Gain is already stipulated within the revised National Planning Policy Framework (NPPF) and in some Development Plans. As such, it is a material planning consideration in the assessment of development proposals and is likely to have notable implications for any development proposal, so should be considered at an early stage. For example, any on-site Biodiversity Net Gain provision will have design and management implications whereas there will be financial costs associated with any off-site provision which may need to feed into the viability of a scheme. Biodiversity Net Gain is also likely to impact on the validation process with additional supporting information required upfront.

For more details, contact the TPP Planning Team.