The Environment Bill: What we do know

As the announcement of the election puts policy-making on hold, the future of the Environment Bill – which will determine the UK’s environmental regulations after Brexit – has been thrown into uncertainty.

Described as a ‘landmark Bill to tackle the biggest environmental priorities of our time’ its objective is an effective net gain policy for the environment, development and local communities. As it stands it would introduce a wide range of policies to tackle everything from air pollution to restoring and protecting natural habitats, waste and sustainable water management.

The policies will likely have significant impact on development projects and the Bill’s delay has left a lot of questions over what and when this might be. So to try and anticipate what is to come, we have taken a look back at what we do know, based on the Government Response to the net gain consultation undertaken in late 2018 / early 2019.

• The majority of developments will be required to demonstrate 10% net gain in biodiversity.
• There is a lack of detail currently on transition arrangements and exemptions. These will be set out in secondary legislation – but we expect it to be limited and narrow.
• Brownfield sites with no habitats to start with that face genuine difficulties in delivering viable development would not be required to deliver compensatory habitats. Instead they would often be required to incorporate some green infrastructure through wider planning policy.
• Minor residential developments may receive longer transition arrangements or a lower net gain requirement than other types of development.
• Government will consider exemptions for development of specific ownership types which may be disproportionately impacted through these changes, such as residential self-build.
• Nationally significant infrastructure projects and net gain for marine development will remain out of scope of the mandatory requirement in the Environment Bill.
• Irreplaceable habitat sites will remain out of scope of the net gain requirement and government will consider the best approach if development affects statutory protected sites.
• Locally designated sites will not have any specific higher net gain requirement. These will remain subject to the ambitious 10% national requirement, and local authorities will continue to be able to set bespoke planning policy and conditions relating to these sites.
• Government does not intend to exclude any development entirely. Instead focusing on planning authorities to continue to be proportionate in their application of planning policy.
• Demonstrated longevity - net gain outcomes will need to be maintained for a minimum of 30 years. This could prove a significant undertaking.
• Government will not introduce a new tariff on loss of biodiversity, instead requiring biodiversity net gain.
• Government will explore opportunities to align net gain with other processes in environmental planning, and will continue to engage with stakeholders around this question.
• Biodiversity credits – proposals to allow net gain by funding schemes elsewhere when unable to do so on site. This raises the challenge of biodiversity improvements being significantly divorced from sites.
• Perhaps most importantly there is expected to be a 2-year transition period.

The required 10% net gain is substantial and will prove more challenging for some developments over others. Specifically challenging may be the need for clients to demonstrate net gain outcomes, through habitat creation or enhancement, to be maintained for a minimum of 30 years.

However, it is important to mention that a number of local authorities are already seeking biodiversity enhancements. So what this will do is regularise that on a national scale and bring consistency for clients.

Of course a question mark remains over the direction this Bill will take under a new government, but broadly we can expect something similar. Whatever the outcome of the election or even Brexit, the next government will need to shape its own Environment Bill; necessary to transcribe environmental protection from European into UK law as well as demonstrate the UK’s commitment to tackling climate change.