The Environment Bill: parliamentary progress

As it stands the Environment Bill offers the land sector some opportunities, but is it as ambitious as it needs to be?

Author: David Riddle

31 July 2020

The Environment Bill was first introduced to parliament in October last year, but it was curtailed by the general election in December then swiftly reintroduced in January. This suggests that the government attaches some importance to it, probably because it provides key mechanisms that will be required to replace EU legislation after the Brexit transition period. The bill reached the committee stage before the COVID-19 restrictions stopped its progress. At the time of writing it is not clear when it might resume. The bill extends to 233 pages, covering some important issues and including a good deal of amendment to existing legislation. Note that some parts of the bill apply to the UK as a whole, some to England and some to the devolved administrations.

By and large it is an enabling piece of legislation and gives powers to the secretary of state to do a variety of things by way of subsequent regulation, some of which are optional. For example, chapter 1 gives the secretary of state the power to set environmental targets in 4 priority areas:

  • air quality
  • water
  • biodiversity and
  • resource efficiency and waste reduction.

However, the secretary of state is not obliged to set more than one target in each area. The degree of impact will therefore depend on the nature and number of targets set.

The bill requires the secretary of state to draw up an environmental improvement plan ‘for significantly improving the natural environment’ for a period of at least 15 years. It provides that the government’s 25-year environment plan published in January 2018 A green future: our 25-year plan to improve the environment shall be that plan. It sets out how the plan will be monitored, reported on and updated. The bill states that the secretary of state’s functions relating to environment improvement plans are not exercisable in Wales, which suggests that a separate plan will be required there.

Environmental principles

The bill defines 5 environmental principles that must be taken into account by all ministers in making any policy:

  • environmental protection should be integrated into the making of policies
  • the preventative action principle to avert environmental damage
  • the precautionary principle, relating to the environment
  • environmental damage should as a priority be rectified at source principle, and
  • the polluter pays principle.

A policy statement will be prepared to explain how these should be ‘interpreted and proportionately applied’.

One of the more tangible proposals in the bill is the creation of a new Office for Environmental Protection for England. Its twin objectives are environmental protection and to improve the natural environment. However, its focus will be to oversee public authorities’ compliance with environmental law.

The RICS Countryside Policy Panel had hoped for a body that could unify, integrate and simplify the various forms of environmental monitoring and audit that currently apply to land management. The proposed body falls short of that and there is concern that it will not even have sufficient teeth to properly hold public bodies to account.

The section on water makes a number of amendments to the Water Resources Act 1991. These include a provision that after January 2028 no compensation should be payable for the modification of extraction licences where that modification is to achieve an environmental objective or to protect the water environment from damage.

With the prospect of increasing demand and reducing supply of water as highlighted in Making the most of water for agriculture, combined with growing risks to water-dependent habitats this could have implications for farms that are dependent on water abstraction, in particular those that have invested in water storage facilities in the expectation of the ongoing ability to extract water. The secretary of state is also given the power to update the way land is valued for the purpose of apportionment of land drainage charges. It will be important that this should be in accordance with usual valuation practice and that estimates, assumptions or averages are used with care.

Waste and resource efficiency

The bill makes provision for relevant authorities in the devolved administrations to introduce regulation to improve the management of waste and efficiency of resource use. Though again there is no obligation on them to do so. Areas covered include: producers contributing to disposal costs, requirements relating to the resource efficiency of products, deposit schemes and charges for single use plastics.

Biodiversity gain

The bill formally introduces the concept of biodiversity net gain to the planning system in England by making it a requirement for a biodiversity gain plan to be submitted and approved as part of the planning process to demonstrate how a biodiversity net gain objective will be met.

A biodiversity net gain objective is met if overall biodiversity value after the development exceeds pre-development value by at least ten per cent. Provision is made for the calculation to disregard any deliberate reduction in pre-development biodiversity value of a site before an application being submitted. Biodiversity value can be made up of a combination of:

  • post-development value of biodiversity on the development site
  • the value of any registered off-site biodiversity gain associated with the development, or
  • the value of any biodiversity credits purchased for the development.

Biodiversity value will be calculated in accordance with a biodiversity metric document not yet published by the secretary of state. Applicants will be required to submit a biodiversity gain plan for approval that must set out the steps taken to minimise damage to on-site habitat biodiversity and how the overall biodiversity gain will be achieved. The bill is not specific about how biodiversity credits will be valued, or precisely how the system will work, but they will be purchased from the secretary of state who ‘may make arrangements’ for how this will be done.

There are mixed feelings about biodiversity gain. Some people believe it will encourage environmental damage by ‘legitimising’ the loss of habitats and species in the course of development, some of which might be considered irreplaceable such as the ancient woodlands in the path of HS2. However, if the system is introduced as proposed it will present opportunities for chartered surveyors. Would-be developers will need help developing biodiversity gain plans, in particular the assessment of options for potential on-site and off-site biodiversity gains, as well as the assessment and purchase of biodiversity credits. Where developments rely heavily on off-site gains, sites will be needed that can provide those gains, either through purchase, lease of land or through the new conservation covenants – see below.

There will also be opportunities for landowners or land managers to offer sites with environmental enhancement potential to provide the biodiversity net gains that developers will be looking for, in return for appropriate payments. Whatever reservations there may be about the system, in theory it will provide a biodiversity net gain of ten per cent as a result of development. The secretary of state has the power to increase that percentage by further regulation.

"There will be opportunities for landowners or land managers to offer sites with environmental enhancement potential to provide the biodiversity net gains that developers will be looking for"
Conservation covenants

Conservation covenants are another opportunity for chartered professionals. At present in the UK the use of covenants over land is limited by the principle that they can only be held for the benefit of adjoining land, with limited exceptions such as the National Trust, which can hold standalone covenants. A further limitation is that currently they can only be negative in nature i.e. they can only prevent something happening, such as development of land or alterations to a building, rather than requiring positive acts of land management.

In 2013 the Law Commission published a consultation paper to explore the potential to introduce more positive conservation covenants into law in England and Wales. The commission reported to government in 2014 with a formal recommendation and the government responded positively in January 2016. Thereafter, the proposal was included in the 25-year environment plan and is now embedded in the Environment Bill.

In essence the scheme would allow a conservation covenant to:

  • be created by agreement between a landowner (or leaseholder with an interest of more than seven years) and a ‘responsible body’
  • contain both restrictive and positive obligations
  • be binding on the landowner’s successors in title once the land is sold
  • be for the public good.

Responsible bodies will include the secretary of state and other bodies designated by them. These include local authorities and any other responsible body, which may be a public body, a charity, or any other body whose main purpose relates to conservation. Conservation covenants will be a local land charge and will run with the land indefinitely unless amended or removed by agreement between the parties, or time limited by agreement.

Although the original intention behind conservation covenants might have been to provide a new mechanism to help secure off-site biodiversity net gains for development, they will also provide a valuable new mechanism for conservation bodies to secure environmental benefits over land without the need to purchase. For example, wildlife trusts could raise funds to purchase conservation covenants over important sites to secure long-term land use change as a cost-effective alternative to acquisition.

Responsible bodies will need to monitor the covenants, and the covenants themselves will need to be drafted carefully to ensure that they are effective, enforceable and proofed against environmental change, particularly climate change.

Obligations under conservation covenants will be enforceable through the courts and the bill lists available remedies as: specific performance, injunction, damages and an order for payment of an amount due under the obligation.

Conservation covenants are a new legal interest in land and as a market develops between developers or responsible bodies seeking biodiversity gains, and landowners with potential environmental gains to offer, they will present new opportunities for chartered surveyors. They are yet one more example of how environmental considerations are becoming central to the future of land management, along with a number of other provisions within the Bill.

David Riddle FRICS is director at 3D Rural Surveyors Ltd

Related competencies include: Environmental management, Legal/regulatory compliance, Sustainability

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