Environment Bill Update

06 Dec 2020

Following a six-month hiatus as a result of Covid-19, the ground-breaking Environment Bill has now passed its Committee Stage and we are now waiting for it to be reported back to the House of Commons for its third and final reading, where MPs will have a chance to propose further amendments. Whilst a number of minor alterations were made during the Committee Stage, the most significant change relates to the introduction of a new section relating to ‘Species Conservation Strategies’ (SCS) and ‘Protected Site Strategies’ (PSS).
Species Conservation Strategies
The SCS provisions empower Natural England to prepare and publish a strategy for improving the conservation status of any species of fauna or flora. This could include:
  • identifying areas or features of importance to the conservation of the species;
  • identifying priorities in relation to the creation or enhancement of habitat for the purpose of improving the conservation status of the species; and
  • Natural England’s opinion on measures that it would be appropriate to take to avoid, mitigate or compensate for any adverse impact on the conservation status of the species that may arise from a plan, project or other activity.
This new mechanism is intended to safeguard the future of particular species; by surveying, planning, zoning and developing measures to mitigate or compensate for impacts up front and across a wide area, a SCS can help to secure local populations and avoid the need for reactive site-based assessments. It will also help to protect species at greatest risk whilst reducing delays to development.
Protected Site Strategies
The protected site strategies (PSS) will cover Special Areas of Conservation (SACs), Sites of Special Scientific Interest (SSSIs), Special Protection Areas (SPAs) and Marine Conservation Zones (MCZs). The provisions empower Natural England to prepare and publish a strategy for improving the conservation and management of a protected site, and managing the impact of plans, projects, or activities on the conservation and management of the protected site. A PSS can address similar measures as the SCS identified above.
The Government’s Fact Sheet indicates that the concept of PSS is broad and includes any approach to mitigation or compensation wider than project level. It states that this will be helpful where a protected site may be effected by a range of offsite activities and will allow a strategic approach to be taken.
Clearly it will be important for developers to be aware of any SCS and PSS that may be relevant to their site, as they will help to identify areas or features that are more critical to retain within a site and the mitigation that may be required to make development acceptable. For large projects, which may impact a number of different protected sites or species, a relevant SCS or PSS may be particularly helpful by informing and simplifying the identification of required mitigation measures to be identified through an Environmental Impact Assessment and secured by condition. This will provide confidence that the mitigation identified will be acceptable to Natural England, resulting in the avoidance of delays during the planning application consultation period.
We would also note that the provisions relating to Biodiversity Gain remain as originally drafted. As set out in our article published 29 January 2020, this will make it a requirement for every Planning Authority to impose a condition on the grant of planning permission requiring that ‘the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage’.  The relevant percentage is currently defined under Schedule 7 of the Bill as 10% but this can be subject to amendment by the Secretary of State.
Whilst the Environment Bill will have wide ranging implications for developers, local planning authorities will also be required to take on significant new responsibilities for managing the environment in their areas, with failure to do so potentially making them liable to the enforcement powers of the Office for Environmental Protection. Therefore, progress of the Environment Bill will need to be closely monitored by developers and local authorities alike.
In addition to the Environment Bill, we are also still waiting for the promised consultation regarding the Government’s proposals for an overhauled Environmental Impact Assessment regime which had been promised for the Autumn.  In the mean time, following our departure from the EU, the EIA regime will continue to operate as it does currently.

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