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Environment Act gains Royal Assent

Environment Act gains Royal Assent

Jennie Baker 11 Nov 2021
The Environment Act received Royal Assent on 9 November 2021, albeit very few provisions are yet in force. The provisions of particular interest to planning are as follows: Environmental targets for air quality, water, biodiversity, resource efficiency and waste reduction and soil health and quality. A 'policy statement on environmental principles' explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown (in England) when making policy (except policies for defence, national security and taxation), to which those Ministers must have regard. The establishment of the Office for Environmental Protection, which describes its duty as to "protect and improve the environment by holding government and public authorities to account". Provisions relating to water and waste, which will have particular impacts on those sectors and consequential impacts on their planning. Biodiversity net gain becoming (in due course) a condition of planning permission and a requirement for nationally significant infrastructure projects. And related to this, a system of purchasing biodiversity credits in order that developments can meet the biodiversity net gain objective. Local nature recovery strategies covering the whole of England, with boundaries to be determined by the Environment Secretary. Species conservation strategies and protected site strategies. A power for the Secretary of State for the Environment, Food and Rural Affairs to amend general duties within the Habitats Regulations. The environmental targets will be set by regulations, which will specify the standard to be achieved and the date by which it is to be achieved. DEFRA has consulted on the draft policy statement on environmental principles “which sets out how those five internationally recognised environmental principles should be interpreted and proportionately applied” and a response is now overdue. Office for Environmental Protection In England, sections 22 to 43 and Schedule 1 of the Act make provisions in relation to the Office for Environmental Protection (OEP). Sections 22-24 and Schedule 1, which relate to the establishment of the OEP, came into force on 17 November 2021. However, the OEP has been operating on an interim basis for some time and will continue to do so until its full legal powers are obtained by Regulations, in due course. The OEP anticipates being fully operational from January 2022.  With regard to the OEP's enforcement function and planning, Lord Goldsmith explained to the Lords during a debate on Commons Reasons and Amendments to the then Bill: “The OEP may pursue cases for enforcement action only if it considers that the conduct in question would constitute a “serious” failure to comply with environmental law. Clause 23(7) states that the OEP must have regard, among other things, “to the particular importance of prioritising cases that it considers have or may have national implications”. While the OEP will have discretion to interpret these criteria, setting out its approach in its enforcement policy, it follows in the Government’s view that cases which only have a local concern—for example, the majority of individual planning and environmental permitting decisions—are unlikely to have sufficiently broad or widespread impact to be prioritised. The OEP could pursue such cases if it considers them indicative of a broader or more systemic issue or failure, or if especially serious harm has resulted, or may result, from the potential failure. The OEP, for example, could consider this in relation to the destruction of a nationally important population of a rare and protected species, but this should not be the norm”. Biodiversity net gain There has been much coverage of the requirement for 10% biodiversity net gain. This will be introduced when a standard condition in Schedule 14 of the Act (not yet in force) is inserted into the Town and Country Planning Act 1990, within what will be Schedule 7A. The standard condition says that all planning permissions, except those granted by Order, emergency Crown development or other types of development as defined in Regulations, may not be begun unless a biodiversity gain plan has been submitted to, and approved by, the planning authority. The planning authority must approve the biodiversity gain plan if, among other things, it is satisfied that the pre and post development biodiversity values are as stated and that the biodiversity net gain objective is met. Biodiversity value will be calculated by using a metric produced and published by the SoS, which may be revised. Schedule 7A will say that the biodiversity gain objective is met if 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 10%, but this can be amended by Regulations. Schedule 15 of the Act (also not yet in force), will make amendments to the Planning Act 2008, to mandate for respective biodiversity net gain requirements for Nationally Significant Infrastructure Projects. In terms of timescales for the introduction of a legal requirement for biodiversity net gain, a written question from Conservative MP Bim Afolami asked about “the potential merits of a pilot scheme to consider the impact of biodiversity net gain in 2022 and 2023 before its full implementation in 2024”. The Environment Minister, Rebecca Pow MP replied with reference to current policies and discussions with the development sector saying: “Some aspects of the biodiversity net gain policy were tested, and evaluated, as part of the biodiversity offsetting pilots which took place from 2012 to 2014. We will shortly be consulting formally on more details of biodiversity net gain’s implementation and will consider which components of the approach might benefit from pre-commencement testing as part of this”. For an overview of biodiversity net gain in current national policy and in forthcoming legislation see Simon Ricketts' blog “Ecology By Numbers: Biodiversity Net Gain In The Environment Bill”. A useful emerging resource is the Planning Advisory Service's page on biodiversity net gain. Policy before law For biodiversity net gain and indeed other planning-related provisions that can be adopted into policy, we are likely to see local policies come forward in advance of national requirements. Where there are no local policies, local planning authorities may consider some emerging national policy and law as a material planning consideration, where the approach or direction of travel is clear. For example, short-lived additions to the Bill made via an amendment in the Lords included an enforcement power to control the felling of trees in England and a new requirement that the Government implements an enhanced protection standard for ancient woodland in England. These proposed provisions were rejected by the House of Commons, but only after the Environment Minister, Rebecca Pow MP, announced: “We will undertake a review of the national planning policy framework to ensure that it is being correctly implemented in the case of ancient and veteran trees and ancient woodland. Should the review conclude that implementation can be improved, we will look to strengthen the guidance to local authorities to ensure their understanding of the protections provided to ancient woodland. Secondly, I am pleased to announce that we will consult on strengthening the wording of the national planning policy framework to better ensure the strongest protection of ancient woodland, while recognising the complex delivery challenges for major infrastructure. Finally, we will amend the Town and Country Planning (Consultation) (England) Direction 2021 alongside these reforms to require local planning authorities to consult the Secretary of State for Levelling Up, Housing and Communities if they are minded to grant planning permission for developments affecting ancient woodland”. In the debate that followed, clarification was sought (by John Redwood MP) as to whether this amendment to policy would mean “[…] another HS2-type assault on ancient woodland would not be allowed, whereas the last one was?” The Environment Minister replied: “What it will mean is that, yes, there will be much more credence given to the value of ancient woodland. At the moment, ancient woodland does not necessarily win, because one can have the infrastructure, or whatever it is, if one can demonstrate that there are wholly exceptional reasons for getting rid of the ancient woodland. This approach will really strengthen the position: it is a really big commitment to ancient woodland, which is like our rainforest. We have to do something about it—and we are, which I hope will be welcomed”. It appears that the intention is that all or part of the proposed clause on an enhanced protection standard for ancient woodland will be incorporated into national policy. We may not know whether the buffer zones will be in the policy to be consulted on, until the consultation emerges. Local planning authorities with ancient woodland may respond in different ways, but some may consider the policy intent above to be considered a material planning consideration, from now on. Parallel publication: Net Zero Strategy With regard Net Zero, the Department for Business, Energy & Industrial Strategy published "Net Zero Strategy: Build Back Greener" (NZS), on 19 October. Recent Lichfields research "Time to panic? Planning and the climate emergency" discusses the need for the development sector to take a decisive and proactive approach to Net Zero. The NZS will need to be followed up with changes to national planning policy, which the Government says it will do. The extent to which policies derived from the Environment Act will be included in a revised NPPF and whether Net Zero objectives will truly embedded into policy remains to be seen. The NZS acknowledges the potential challenges in ensuring that policies are complimentary rather than contradictory: "Delivery of net zero policies and proposals will need to consider the UK’s other legally binding environmental commitments (for example, new legally binding targets stemming from the Environment Bill), and any trade-offs against these acknowledged and mitigated through careful planning policies and actions can be designed that deliver multiple outcomes in support of the UK’s net zero and 25 Year Environment Plan ambitions.For instance, the planting of broadleaf trees and restoration of peatland or grassland can deliver carbon sequestration as well as environmental benefits including improved biodiversity and water quality, if done in the right way. Conversely, certain interventions such as planting of maize for biomass or food may risk soil health and water quality. It will be important to assess the wider impacts of proposed net zero actions and seek synergies with environmental ambitions wherever possible, so that the twin challenges of biodiversity loss and climate change are tackled in an efficient way". The Environment Act 2021 The Environment Act 2021 (Commencement No. 1) Regulations 2021

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Head north from the Land of Green Ginger

Head north from the Land of Green Ginger

Jonathan Standen 12 Oct 2021
This blog touches on the planning implications for major development in new Areas of Outstanding Natural Beauty with a focus on the prospective designation of the Yorkshire Wolds. “There can be few national purposes which, at so modest a cost, offer so large a prospect of health‑giving happiness for the people[1],” contended  John Dower, Yorkshireman, civil servant  and architect in his concluding remarks of his report upon National Parks in England and Wales, which led to the system of National Parks and Areas of Outstanding Natural Beauty we enjoy today. Written in 1945, he recognised that Britain would be happier and healthier if our finest landscapes were kept safe for everyone and for all time. The recent announcement (June 2021) that the Yorkshire Wolds together with three other areas including the Cheshire Sandstone Ridge, Surrey Hills and Chilterns are being considered by Natural England as candidates for designation as Areas of Outstanding Natural Beauty (AONB) highlights the importance of these landscapes in terms of character, natural beauty and a healthy environment. If designated, the four areas will receive greater protection and have the potential to deliver over 40% of the additional 4,000km2 needed to deliver the Government’s commitment to protect 30% of our land for nature by 2030 and safeguard beautiful and iconic landscapes for future generations. Created by the National Parks and Access to the Countryside Act of 1949, AONBs presently represent 18 per cent of the finest countryside in England and Wales. The areas now considered for designation, will with respect to development be afforded the highest status of protection should AONB status be confirmed. Precious natural landscapes such as the Yorkshire Wolds, notable for its dry chalk valleys with tranquil and gentle countryside provide enormous benefit to people who visit and spend time there and are able to connect with nature and the natural environment. Reinforcing its cultural identity, the landscape has provided inspiration to the works of celebrated international artist and Yorkshireman, David Hockney and local novelist Winifred Holtby[2]. Our landscapes have the capacity to reach out to all communities and provide benefits to our individual and collective wellbeing. In turn, visitors to them make an important contribution by providing economic benefits. AONBs are however, living and working landscapes supporting developments which have traditionally sustained local communities and have been part of the fabric and influenced the evolution of those treasured landscapes. The recently revised National Planning Policy Framework (NPPF) (20th July 2021)[3] highlights the great weight given to the conservation and enhancement of not only AONBs but also National Parks and the Norfolk Broads, where the scale of any development taking place should be limited in nature.  The NPPF provides that any development proposed should be sensitively located and designed to avoid or minimise adverse impacts, with planning permission for major development proposals being refused other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.  The Framework qualifies this by providing the decision maker the scope to decide whether the proposals are ‘major development’ taking into account its nature, scale and setting, and whether the development could have a significant adverse impact within the designated landscape. Falling within the category of major development[4] are land-uses including quarrying, gas extraction, waste management, or the development of 10 or more new dwelling houses or development of sites of larger than 1ha. Changes in status to AONB may however require realignment of the development plan which is administered by local authorities to ensure all new development proposals are considered within an adopted policy regime which ensures the necessary level of protection and sensitivity to the landscape and natural environment. In the case of the Yorkshire Wolds and adjacent areas for instance, the development plan[5] identifies areas of search and preferred areas for a variety of minerals including chalk, silica sand, oil and gas, each of which in planning terms falls within the category of major development. These provide valuable resource of primary raw materials necessary for construction, manufacturing and employment for local people and supply chain businesses.  With industrial chalk extraction and processing operations recognised as often being of a large scale  - reflecting the level of investment made in them, and silica sands a nationally scarce and high value resource of national importance, an essential raw material for the glass and foundry casting ceramics and chemical industries, proposals for future development of these minerals within an AONB will need to overcome a high bar in policy terms to satisfy the decision makers. Such justification is likely to require demonstration that the major development proposed including the mineral sought could not be obtained from locations not safeguarded by such a landscape designation.     Minerals development has an enviable track record however in its contribution to significant biodiversity improvement when extraction has been completed and land restored, particularly within intensively farmed landscapes where the loss of habitat has resulted from well documented intensification of agricultural practices. Carefully planned and designed developments can be consistent and contribute positively to the landscape within which they sit. In maintaining our treasured landscapes for the benefit of everyone for all time, there will inevitably be tensions between land uses including those which may be seen as being acute, particularly given the special significance of these national landscapes for biodiversity, natural beauty and cultural identity. Town planning will play a key role in that debate. [1] Ministry of Town and Country Planning, National Parks in England and Wales: Report by John Dower, Cmd, London, HMSO, 1945[2] Winifred Holtby, author of Land of Green Ginger (1927) South Riding (1936)[3] National planning Policy Framework July 2021[4] Town and Country Planning (General Development Procedure) Order 1995[5] Joint Minerals Local Plan, East Riding of Yorkshire and Kingston upon Hull 2019  

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