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The Environment Act 2021 – What you need to know…

24 Nov 2021

The Environment Bill shouldn’t be a new phrase to anyone who has worked with Tyler Grange in the past couple of years. It’s been advertised as a ground-breaking piece of legislation which, amongst many other things, hopes to ‘halt’ the decline in biodiversity that is well documented across the UK.

After what seems like a lifetime doing the rounds in the House of Lords and Commons, the Act has finally achieved Royal Assent, and it’s no secret that COP26 has been used as the catalyst to finally get it over the line.

In this blog, we we’ll cover some key terminology surrounding the Environment Act 2021, our familiar friend, Biodiversity Net Gain, and how this will impact you.

 

 

What does Royal Assent mean?

Royal Assent means that a Bill has been translated into an Act of Parliament. Essentially, it means it’s now the law.

So, with immediate effect, The Environment Bill is now The Environment Act 2021.

This act, in time, will legally mandate a 10% net gain when associated with developments. (If you’re unfamiliar surrounding the terminology 10% net gain, don’t panic; we’ve got a handy little blog explaining it here.)

However, what most people don’t know is that the Act itself doesn’t make the 10% net gain legal. It’s actually the secondary legislation to be amended following Royal Assent.

This means it is specifically the Town and Country Planning Act which, over a period of time, will be amended to make net gain a condition of planning permission, with a target uplift of 10%.

However, this doesn’t mean a Planning Condition associated with a permitted development…

It means that every development (with a few minor exceptions) will need to demonstrate the ability to achieve biodiversity net gain. And, if it can’t, it should be refused.

The Next Steps...

The Town and Country Planning Act will not be amended for some time. In fact, it is well reported that there will be a ‘2-year’ transition period before it becomes official, which takes us to 9th November 2023.

This isn’t to give developers more time to adjust, as it’s been knocking at the door for some time now.

It’s to give Local Planning Authorities time to get set up for the delivery of net gain, as there are lots of other items in the Act for them to consider such as the creation of Nature Recovery Strategies and formalising a mechanism for off-site habitat creation.

Worry not, however. We’re here to help you navigate the complexities of your planned developments, throughout the anticipated transition period and beyond.

Read on for more information.

The Finer Detail

We know that was a little bit intense but now we want to take it a step further and share with you some of the finer details of the Act.

We’ve scoured through the Act (so you don’t have to) and we’ve pulled out some interesting things that stand out and some aspects that we’re curious to watch unfold in the future!

Think of this section as your own Q+A on the Act!

Why and what does the 10% mean?

Para 2 (3) of Schedule 14 concerning Biodiversity Net Gain sets the relevant ‘uplift’ in BNG to 10%.

However, the very next paragraph states that the Secretary of State (SoS) may “by regulations” amend this to change the relevant percentage.

Make of this what you will but expect 10% to be the benchmark. We’d also urge you to be conscious of where you are in the country – some places have already set this target at 20% in Local Policy, so 10% may not be enough to get your project approved.

When should the baseline value be calculated?

Before any development and/or site clearance activity, is the short answer.

However, in more detail, it is before any development and/or site clearance activity unless a person has carried out activities on the land after 30th of January 2020 related to a planning permission or any other kind of permission specified by the Secretary of State. Standard agricultural rotation falls under this bracket.

If the biodiversity value of the site has been reduced as a result of activities not covered by the above, the baseline biodiversity value is taken to be the value before the activity.

This should be based on the professional judgement of an ecologist and will have precautionary assumptions applied as necessary.

Are there any exceptions?

Para 13 (1) of Schedule 14 states that every planning permission granted for the development of land in England shall have a biodiversity net gain plan to demonstrate the 10% uplift.

The exceptions are vague but include ‘development for which planning permission is granted by a development order, or under Section 293A (urgent Crown development), or development of such other description as the Secretary of State may be regulations specify’.

Therefore, it’s safe to assume that most of the development (including NSIPs) will be tasked.

Conditioning BNG

“We’re going for an outline application – can BNG not be a Reserved Matter?”

We hear this question a lot.

In our experience, the short answer is ‘no’.

Regardless of what is in the Act, Local Planning Authorities must address BNG with every application.

If it’s apparent the development will result in a loss in BNG, LPAs must have a mechanism (via S106/Planning Conditions) at the outline stage to secure the delivery of BNG off-site. This can be either through the council or a 3rd-party and shouldn’t be secured via Reserved Matters.

However, within Para 19 (1) of Schedule 14, the Act states that the SoS may by regulations make provision modifying the application of BNG in relation to ‘the grant of outline planning permission, where the reservation of matters for subsequent approval has the effect of requiring or permitting development to proceed in phases or the grant of any kind of planning permission, where the grant is subject to conditions having that effect’.

So, it does seem like a precedent may be set here to defer BNG to Reserved Matters.

With that being said, our opinion on the matter is that we think this is dangerous and should be applied very carefully.

Regardless of the ability to condition BNG and not provide the calculations upfront with an outline application, it can only ever be sensible to know what kind of BNG loss you could be looking at upfront, and well in advance of a planning submission.

With an average tariff of c.£10k – £15k to offset each BNG unit, developers really need to be considering if a large, commuted sum could then make a development unviable.

What about perpetuity?

This is a scary word and was threatened to be included in the Act but this has been removed in the final version. The wording now requires for all on-site and off-site habitat to be created as part of a BNG plan to be subject to management for a period of ‘at least 30 years’.

The SoS retains power to request an alternative period of at least 30 years.

Reading between the lines, our opinion is that longer periods will be required for the more contentious schemes where there are losses of more valuable habitats which are not readily replaced in 30 years, such as more mature woodland (but not Ancient Woodland as this is treated as irreplaceable and exempt from BNG as it shouldn’t be removed anyway).

One to watch out for but expect 30-year management plans to be the norm. So, you may want to invest in a very forward-looking diary.

Looking to the Future

As always, we will be keeping a close eye on how the roll out of the Act and the associated secondary legislation amendments play out, particularly the case law in this transition period.

Once we know, you’ll know.

And, whilst we’ve been saying it for years, we can’t stress enough that there’s never been a better time to engage your ecological consultants as early in your development process as possible.

Got a project you’d like to collaborate on?

We’d love to hear from you. Get in touch with us today at hello@tylergrange.co.uk.

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