The Environment Act

LI life: Policy update

by Theo Plowman

After a slow journey from Bill to law, perhaps the most significant piece of environmental legislation in a generation has passed. Enter The Environment Act, a monolithic framework that outlines the regulations that hold the UK government and others account over environmental issues.

The new Act builds on the regulations previously implemented by the EU. It is a crucial Act for our members and provides an important foundation to enable us to deliver real change for climate, people and nature. The high-level environmental laws and some specific sections are of real importance to our membership. This article will cover the key headlines for landscape practitioners. The Act seeks to provide a post-Brexit legal framework for environmental governance and make provision for improvements to the natural environment. The Act is broken down into a number of key parts:

Parts 1 and 2: Environmental governance

Part 3: Waste and resource efficiency

Part 4: Air quality and environmental recall

Part 5: Water

Part 6: Nature and biodiversity

Part 7: Conservation covenants

Environmental Governance

The Environmental Governance section is where the bulk of the toplevel legal frameworks, targets and principles lie. It is formed of roughly six key areas of interest.

Process for setting legally binding, long-term environmental targets

There is a new duty to set at least one long-term target in each of the following priority areas by 31st October 2022:

• Air quality

• Water

• Biodiversity

• Resource efficiency and waste reduction

In addition to these 4 priority areas, the Secretary of State must also set targets for:

• Fine particulate matter (PM 2.5) (in addition to the air quality target above)

• Species abundance (related to biodiversity)

Importantly, the targets must outline a standard to be achieved, which must be capable of being objectively measured, and a date by which it is to be achieved.

The Secretary of State has a duty to meet the targets. A consultation on draft targets will likely take place in February 2022.

Environmental improvement plans

These plans require government to establish strategies to improve the natural environment, linked to the aforementioned targets. It is intended to make long-term, dependable commitments to policy making, outlasting political cycles. The DEFRA 25 Year Environment Plan is considered the first Environmental improvement plan, and these must be reviewed every five years.

Policy Statement on Environmental Principles

This places a requirement on Ministers to take account of key environmental principles when making policy affecting the environment, consisting of:

• Ministers having “due regard” to the policy statement when developing policy.

• Developing the policy statement explaining how principles should be interpreted and applied.

• Principles must contribute to improvement of environmental protection and sustainable development.

• The key principles are, prevention of pollution; rectification of damage at source; the polluter pays and integration into policy and business as usual.

The LI consulted on the draft environmental principles in March 2021.

Non-regression and improvement statements

This is a provision which requires Ministers to make a statement to Parliament explaining whether or not clauses in a Bill (a draft law) would reduce the level of environmental protection provided under existing law. In an effort to maintain pace with environmental protections internationally (i.e., the EU) every two years, the Secretary of State must report on developments in international environmental protection legislation which appear to be significant.

Office for Environmental Protection (OEP)

The Act establishes the OEP, an independent body. It has existed in an interim capacity since July 2021, however is not yet fully operational. The OEP is expected to be fully established in early 2022. The Secretary of State will appoint the chair and board and determine the budget. This body will:

• Advise, scrutinise and enforce environmental law

• Monitor the implementation of environmental law, reporting on any matter it chooses

• Advise on changes to environmental law

• Receive complaints where a public authority has failed to comply with environmental law (includes climate change), which the OEP may investigate.

• Issue information and decision notices setting out the steps required in response to “serious failure” – with the power to take cases through the new “environmental review” mechanism in High Court

• Provide Parliament with annual reports

Other relevant sections

Air Quality & Environmental Recall

• Targets on PM2.5 (small particulate matter)

• Require better cooperation within the Local Air Quality Management Framework – power to designate a lead local authority (LA) to monitor local air quality and write a local air quality plan, requiring LAs to cooperate with each other

• Make national air quality performance more transparent – requiring SoS to make an annual statement to Parliament on air quality, updating the national air strategy more regularly.

Nature and Biodiversity

The Environment Act features the Convention on Biodiversity 2030 Targets from COP15. Here it was stated that, by 2050, biodiversity should be highly valued, conserved, restored, and wisely used, maintaining ecosystem services, sustaining a healthy planet, and delivering benefits essential for all people.

Urgent action was needed across society to conserve and sustainably use biodiversity and ensure the fair and equitable sharing of benefits from the use of genetics resources, to put biodiversity on a path to recovery by 2030 for the benefit of both the planet and people. The Environment Act of 2021 has put in the following provisions to achieve this:

• Biodiversity net gain for new developments and nationally significant infrastructure will be 10%

• Biodiversity credits and the establishment of environmental markets.

• Conservation covenants.

• Local Nature Improvement Strategies.

• Extended local authority duty to conserve and enhance biodiversity in their areas.

• New biodiversity reporting requirement for local authorities.

• New legally binding biodiversity targets – inc. a 2030 species abundance target.

• Establishment of nature recovery networks.

• Tree planting strategy and new power to control the felling of trees.

• Peatland restoration strategy.

Conservation Covenants

The Act saw the formalisation of conservation covenants. Conservation covenants allow landowners to set legally binding duties on their land for themselves and successive landowners. This will allow landowners to secure environmental benefits for the long term. Once they are agreed they cannot be bypassed, and the rules of the covenant must be abided by indefinitely (or for whatever length of time has been specified).

To enter a conservation covenant, a landowner will need to enter a partnership with a ‘responsible body’, which includes charities and governmental organisations as well as private companies.

The Environment Act will look to use conservation covenants to:

• To ensure adequate protected biodiversity within a development site

• To enter an ‘offset credit’ agreement with a piece of protected land in another location

A potential use is when a developer is able to introduce a protected biodiversity feature (such as a wildflower meadow) in a site, the developers would establish a conservation covenant to ensure that this feature would be retained by future owners.

On the other hand, in cases where it is not appropriate to introduce biodiverse features within a development, developers will be able to offset this by purchasing ‘credits’ from other landowners. In these agreements, other landowners would offer up an area of their own land to become protected by a conservation covenant in return for payment from the developers.