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Oliver Bussell

Partner - Sevenoaks and Ashford

23rd September 2021

When policy agendas clash: what’s happening with the Environment Bill?

When policy agendas clash: what’s happening with the Environment Bill?

Landowners, developers (and a fair few lawyers) have been interested in the far-reaching changes promised in a forthcoming Environment Act – since even before the current government was elected. For some time now we have been hearing that the Bill is going to be enacted by autumn 2021 – the Government’s interest in getting this in place before COP 26 is part of the reason. And that may yet happen of course. But some important toughening up of the Bill has been imposed by the House of Lords which the Government is not happy with and this may yet cause further delay.

The Environment Bill promises very far-reaching changes to the way in which the planning system in England and Wales works. If I had to boil down to the most important point it would, of course, be the requirement for 10% biodiversity net gain being shown on the overwhelming majority of new consents granted. And the strong emphasis towards provision of that net gain on-site (this is something developers should be especially mindful of because as things stand there is no default position at which a developer can buy credits to mitigate the effects of development – it’s a matter at the local authority’s discretion).

Earlier in September the House of Lords has required further and quite extensive toughening of the regime set out in the Bill:

  • strengthening the role of the office for environmental protection which will enforce the regime;
  • requiring that a formal declaration of biodiversity and climate emergency be made;
  • imposing a stricter approach to air pollution targets;
  • prioritising the health of soils;
  • making targets for nature, air, water and waste legally binding; and
  • requiring environmental principles be taken into account in policy-making.

Then on the same day as the reshuffle last week the Lords further limited the Government’s powers to amend the Habitats Regulations and strengthening protections for ancient woodland.

We know that the much-heralded planning reforms are no longer being pursued after Robert Jenrick was stepped down last week.  Is the same thing going to happen to the Environment Bill?  That hardly seems likely given the amount of time and consensus in play here – and the contrastingly more serious and thought-through proposals on the environmental front than what was being proposed for planning.  Still there is a severe tension between the serious evidence- and expert-based agenda – and the no less powerful deregulating mentality in the Johnson government.  My expectation is that the Bill will become an Act, if not in time for COP26 then soon after.  Developers should keep in mind the two year grace period they will have following enactment before the 10% requirement kicks in under the Act – but remember more and more local authorities are pursuing biodiversity net gain as part of their own policy anyway.

Contact our planning lawyers in Sussex and Kent

Oliver Bussell is Partner and experienced planning lawyer in Rix & Kay’s Commercial Property & Planning Team. For more information, please email or call T: 01732 448050.



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