THE ENVIRONMENT BILL – THE VIEW FOR REAL ESTATE?

22 Oct 2019

Policy area: Sustainability

The Environment Bill, laid before Parliament on 15 October 2019, has something for almost everyone.  At 244 pages long with 212 pages of explanatory notes, it contains a new governance framework and various provisions in four different areas – waste and resources, air quality, water and biodiversity.  To explore the view for real estate this blog looks at the provisions for the new Office for Environmental Protection (OEP), air quality and biodiversity.

The new Office for Environmental Protection (OEP)

The OEP is the ‘watchdog’ tasked with holding the government to account for the environment after Brexit. Besides monitoring and reporting on the government’s compliance with environmental laws, the OEP will have powers to take enforcement action against public authorities for non-compliance.

In ‘serious’ cases the OEP will have the right to bring judicial review and statutory challenge proceedings itself, as well as to intervene in third party proceedings. It can also initiate a new procedure, known as ‘environmental review’, in the Upper Tribunal. Although most areas of planning legislation will fall outside the OEP’s remit, the explanatory notes accompanying the Bill state that environmental impact assessment and strategic environmental assessment will fall within its remit. There will inevitably be other grey areas which will fall to the courts to determine. Consequently, developers may well find objectors to schemes turning to the OEP to seek its involvement.

Air quality

To try to tackle poor air quality in England, the Bill imposes a new duty on ‘relevant public authorities’, including local authorities, to have regard to the air quality strategy for England when exercising any function of a public nature that could affect the quality of air. Such functions include planning functions, which means that local planning authorities will have to have regard to the air quality strategy both when making local development policies and when taking planning decisions. This could again create scope for legal challenges by objectors who believe that local planning authorities have had insufficient regard to air quality when taking planning decisions.

Biodiversity

To improve biodiversity, the Bill adds a deemed condition to planning permissions in England requiring a ‘biodiversity gain plan’ to be submitted to the local planning authority and approved before the commencement of development. Such a plan must achieve a 10% gain in biodiversity value for the development site, though this can be achieved through the use of off-site habitats and even the purchase of biodiversity credits from the government. How the implementation of the plan is to be secured is flexible – it could be through a planning condition, a section 106 obligation or a conservation covenant.

Conservation covenants are a new type of covenant affecting land entered into by landowners and ‘responsible bodies’, which may be the Secretary of State, a local authority or a conservation charity, in order to secure gains in biodiversity value.

There will be some limited exemptions from the requirement to submit a biodiversity gain plan for certain types of development - in particular permitted development. Sites that do not contain habitats to start with (such as those entirely comprising buildings and sealed surfaces), nationally significant infrastructure projects and marine development are also likely to be exempt.

While some environmental groups might criticise the Bill as not being ambitious enough, it does represent progress and may allay fears that environmental standards will be weakened after Brexit.  It is to be hoped that the Bill can command some cross-party support in Parliament, but the threat of a general election later this year could jeopardise its survival.

Angus Evers
Environmental Partner
Shoosmiths LLP

angus.evers@shoosmiths.co.uk