Expert View ENVIRONMENTAL PROTECTION IN THE
POST-BREXIT WORLD by Ashlea Thornton
Associate partner, Farleys
The Environment Act 2021 is an important and wide-reaching act that introduces a new framework for the UK’s environmental protection in the new post- Brexit era.
New legislation will come into force from winter 2023 where all planning permissions granted in England, subject to exemptions, will be subject to a new pre-commencement condition enforcing a mandatory 10 per cent biodiversity net gain on the biodiversity metric value of the land, to be known as the “biodiversity gain objective”.
Those submitting planning applications will need to include a plan for how the development will achieve the biodiversity gain objective as part of the application.
The plan will also need to set out the steps that will be taken to minimise the impact of the development on biodiversity as well
as providing details of the existing pre- development biodiversity value of the site.
The biodiversity net gain requirement will be a condition for all planning permissions granted in England as well as for planning consents for nationally significant infrastructure projects. There will, however, be exemptions for the following projects:
• urgent Crown developments
• development proposals resulting in minimal impact on low or medium “distinctiveness” habitats such as agricultural productive land
• householder applications • change of use applications
It is advised that anyone seeking to develop land should seek legal advice to establish their position and ensure they comply with all their obligations.
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or from the sale of nondevelopment land whilst retaining ownership of their land.
“The offset land must be subject to a conservation covenant or a planning obligation to be accepted as part of a BNG. These conditions secure the biodiversity outcomes for 30 years.”
Julian Silverwood, managing director of east Lancashire-based Silverwoods Waste Management, is also looking to be an early mover in the fledgling BNG sector.
To that end, 160 acres have been bought near Stonyhurst in the Ribble Valley and a 540-acre estate, with extensive woodland, has been purchased in rural Northumberland.
Julian says both have land that is not considered prime agricultural and would be ideal for BNG offsetting, with his business committed to creating, managing and monitoring projects that boost biodiversity.
He says: “BNG is a whole new potential industry. Housebuilding is going to continue, and our aim is to be well positioned to provide a solution to numerous developers.”
Andrew Coney is partner at Preston-based rural property experts PWC Surveyors. He says he is currently talking with a lot of clients and developers about BNG and its impact.
Andrew believes there are opportunities, however he strikes a note of caution. He says: “Landowners need to be very careful. Local authorities are going to want a 30-year conservation covenant on land being used for this purpose.”
The government will keep a register of off- site biodiversity gain sites. Over that three- decade timescale the enhanced biodiversity of the land may see it become the subject of environmental protection, which means it cannot be returned to farming or any other use once the 30 years has lapsed.
Andrew adds: “It is likely that the planning authority will want to see BNG delivered in the local area and will be looking for offsetting areas within their borough.
“If you’re in an area such as Exmoor and you’ve got planning consent you are not going to be short of areas to develop BNG on. It’s a different story in places such as the London borough of Hackney. There you may struggle.”
However, he adds: “There is a market, and I’m sure that market will develop. We’re just not sure as to its extent yet. It is early days.”
Paul Walton, director of Lancashire based PWA Planning, says the secondary legislation which will provide detail on BNG does not exist at present and the biodiversity credits system has yet to be properly established.
He adds: “In time it is likely that the regulations and the associated practical solutions will exist to overcome the BNG issue and ensure that developments support the essential need to achieve net gain.
“For the time being it is another complex aspect of the planning system which adds to delay and uncertainty and which can often be used by those who would wish to prevent otherwise acceptable forms of development.”
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