What does the Environment Act 2021 mean for developers?

15 November 2021

The long-awaited Environment Bill was passed into law on Tuesday 9th November, becoming the Environment Act 2021.

The Act has been produced in a bid to improve air and water quality, protect wildlife, increase recycling and reduce plastic waste across the UK. The full version of the Act is yet to be published; however, the following provides an overview of the implications for developers.

Environment Act and Planning Applications

The Act introduces measures surrounding biodiversity and air quality that are of particular note.

The Environment Act states that developments should exceed pre-development biodiversity values by at least 10%, effectively providing a biodiversity net gain (BNG). This requirement is not in itself new - existing planning policy set out in the National Planning Policy Framework (NPPF) states that net gain should be achieved through the planning process where possible. However, this is the first instance in which a minimum target for BNG has been made identified and made law. Previous drafts of the Environment Bill have noted that a 10% net gain would be required, and many local councils have requested that developments provide this, but until now this request wasn’t support by law. The achievement of BNG will be made possible through either the provision of new or improved habitats on or off-site, or through the purchase of statutory biodiversity credits. A BNG site register and a statutory credits sales platform to purchase biodiversity credits are anticipated to go live in Spring 2023.

It will also be the responsibility of developers to ensure that habitats secured to achieve net gain are managed and monitored for a period of at least 30 years after the development is completed. Currently many plans only consider what is needed over a 5-10-year period. This may have substantial financial implications for projects.

BNG will be applicable to all planning applications (including Nationally Significant Infrastructure Projects (NSIP)), with the exception of marine developments.

The Act also introduces Local Natural Recovery Strategies (LNRS) – a new system of spatial strategies for nature, which will seek to establish priorities and map proposals for specific actions to drive nature’s recovery and provide wider environmental benefits. It is not clear at this time how the LNRS will relate to the work of local planning authorities and what impact they will have on the determination of planning applications.

Feeding into LNRS, the Act introduces a Species Conservation Strategy as a new mechanism to safeguard the future of particular species at greatest risk. It also introduces a Protected Site Strategy which will seek to achieve a similar purpose in respect of protected sites. The measures will place a new duty on local planning authorities to cooperate with Natural England and other local planning authorities and public bodies in their establishment and operation. As with the LNRS, it is unknown at this point what implications this may have for planning applications.

With regards to air quality, the Act establishes a legally binding duty on government to bring forward at least two new air quality targets in secondary legislation by 31 October 2022. The first will aim to reduce the annual average level of fine particulate matter (PM2.5) in ambient air. The second will be a long-term target (set a minimum of 15 years in the future) to reduce population exposure to PM2.5. There is clearly the potential for this to affect planning applications particularly in areas of poor air quality.

The Act also amends the Environment Act 1995 in order to strengthen the local air quality management (LAQM) framework to enable greater cooperation at local level and broaden the range of organisations that play a role in improving local air quality. DEFRA states that the responsibility for tackling local air pollution will now be shared with designated relevant public authorities, all tiers of local government and neighbouring authorities. How this will affect planning applications will become clear once further details are released.

What Happens Next?

It is anticipated that there will be a transitionary period of up to two years before BNG becomes a mandatory requirement for all planning applications. However, many local authorities are already putting policies in place for BNG requirements.

It is likely that secondary legislation and/or national policy will set out transitional provisions for BNG requirements, the role of LNRS, and new air quality targets.

Avison Young’s Environmental Planning team will continue to monitor the new Environment Act and any future planning policy which is released that may have an impact on planning applications.

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