Monthly Archives: November 2021

Book reviews, Conservation, Mitigation

Environment Act 2021

The Environment Act 2021 –  10% net gains now mandatory

(This is a preliminary review, awaiting commencement date – either from a Commencement Order, or , if not, the evening of 9 Nov 2021)

 The Environment Act 2021 was given Royal Assent on Tuesday 9 November 2021.[1]

NOT to be confused with The Environment Act 1995, especially where sections 4,5,6 on controlling pollution and ‘conserve and enhance’ are concerned.

The Environment Bill had this official long title:

‘A Bill to make provision about targets, plans and policies for improving the natural environment; for statements and reports about environmental protection; for the Office for Environmental Protection; about waste and resource efficiency; about air quality; for the recall of products that fail to meet environmental standards; about water; about nature and biodiversity; for conservation covenants; about the regulation of chemicals; and for connected purposes.’[2]

A new body will be set up called the Office for Environmental Protection (OEP).

Much of the Act is about sewage, but this briefing note is about the natural environment.

The OEP, according to George Eustice (Environment Secretary), will have five roles, which will be legally binding; these will strengthen the government’s commitment to ‘building back greener’ :

  1. The integration principle
  2. The prevention principle
  3. The rectification at source principle
  4. The polluter pays principle
  5. The precautionary principle

Further explanations of these are on gov.uk 2021[3]

If you think the last two principles are familiar, that is because they are in the 1992 Rio Declaration, of which the UK was a signatory.

Net Gain – key points[4]

  • Developments ‘Must satisfy 10% net gain in biodiversity points’,
  • Must be satisfied before planning permission is given
  • It is the duty of the LPAs to ensure compliance (expect variable uptake then!)
  • ‘The habitats created must be managed for up to 25-30 years’

Exceptions (only two)  are

  1. ‘Householder developments’.
  2. ‘Specific development on infrastructure land by providers or nationally significant infrastructure.’

Leniency is proposed for smaller sites to prevent disproportionate costs..

Net Gain delivery  – more key facts

The government requires all 35,000 developers to deliver these gains.

It estimates they they will have to pay out £900 per ha for site surveys, and £19,698 per ha for habitat creation (advised by RSPB, NT, Wildlife Trusts), inclusive of 30 years maintenance as well.

The government think net gain will help to achieve the 25-year environment plan (Defra, 2018).  They also think it will create a ‘level playing field’ for developers.

The gains have been estimated to achieve a monetary value of £1,395.7m. ‘These benefits do not fall within the 10 year appraisal period, as it is expected that developers take 20 years to create the desired habitat condition.’   So delayed monitoring will have be built into each development Site.

 It is believed that ‘29% of residential developments already deliver net gain is based on evidence that six developers have some form of habitat mitigation and creation policy.’

 The government believe that most net gains will continue to occur on site, though, off-site gains, as offsetting’ is likely to increase. This seems reasonable.

Whilst this consultant already knows some Councils who seek substantial payments of money per ha for biodiversity projects off-site the government have worked out that The assumption of the cost per biodiversity unit at £11,000 is satisfactorily supported’

                                                   

Other major changes

  • The Environment Bill ‘builds on this strong foundation, and maximises the opportunities created by leaving the European Union, underpinning our goal of delivering a Green Brexit.’[5]

If you want to know what a Green Brexit is, go to Soil Association video.[6]

  • Statutory Environmental Improvement Plans (the first being the 25 Year Environment Plan) will be created to ensure government can be held to account.
  • Local Nature Recovery Strategies will be established across England, to ‘support better spatial planning for nature recovery…’
  • Forestry Enforcement Measures will be introduced to give Forestry Commission powers to impose larger fines for illegal tree felling. (currently fines, when imposed are paltry).

            

[1] Hansard, 9 Nov.2021

[2] Gov.uk 8 Nov 2021. Environment Bill. Commons insistence, disagreement, amendments in lieu and reasons.  https://bills.parliament.uk/publications/43515/documents/910 (accessed 12 Nov 2021)

[3] Gov.uk. 2021. Press Release. From Defra and The Rt Hon George Eustice MP, dated 10 March 2021.  Consultation launches on on environmental principles.  Five legally binding principles will guide future policymaking to protect the environment. https://www.gov.uk/government/news/consultation-launched-on-environmental-principles (accessed 12 Nov 2021).

[4] Regulatory Policy Committee, 2021. Biodiversity net gain Department for Environment, Food and Rural Affairs RPC rating: fit for purpose.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/858037/2019.06.06_-_RPC-4277_2_-DEFRA-EA_biodiversity_net_gain.pdf  6pp. Date of issue 06.06.2019, but current and on site when accessed  www.gov.uk/rpc  (accessed 12 Nov 2021)

[5] Defra, 2021. Policy paper 30 January 2020, Updated 6 September 2021: Environment Bill 2020 policy statement Department for Environment Food & Rural Affairs (https://www.gov.uk/government/organisations/department-for-environment-food-rural-affairs). (accessed 12 Nov 2021)

[6] Soil Association 2021  Green Brehttps://www.soilassociation.org/causes-campaigns/green-brexit/ (accessed 12 Nov 2021)

 

Book reviews, Conservation

The Blue Book – RoW

Riddall, J. & Trevelyan, J. 2013. A Guide to Law and Practices. 4th edition. Published by the Ramblers’ Association and Open Spaces Society.  883pp.  ISBN 8780-1-901 184-99-0    £29.95

 

Known as The Blue Book, this has been the bible for ramblers since 1983.

The book was written by two authors, John Riddall, a barrister, and John Trevelyan who worked with the Ramblers’ Association. Trevelyan had previously been heavily involved with the passage through Parliament of the Wildlife and Countryside Bill and he could see that a lot of the existing legislation on rights of way needed substantial revision. That is where The Open Spaces Society came on board as co-publishers with The Ramblers’ Association. That was the genesis of the Blue Book, which sold out in its first edition. The 4th edition of 2007 has not been revised.  Sadly John Riddall died in 2014 aged 86.

The book is a massive and weighty tome, typical of many legal books, and it has all the feel and look of legal books, with the minutiae and arguments of cases referenced galore. The book is in two parts, the first on the law and practice, the second on Acts, Regulations and Circulars, which splits the book almost in half (400 pages each). There are nine pages of legal cases and a list of law reports and 12 pages of chronological legal instruments from 1275 AD which is useful.

Not included in the book are all Welsh regulations or publications ‘where these are equivalent of those in England’. This is a pity as the equivalent Welsh regulations depart significantly from their English equivalents, with completely different on-line resources and ways of conveying information of a natural history nature and access to the countryside. Much has moved on on conservation awareness in Wales in the last few years, since the Blue Book was published.  Ecologists used to accessing English data have to re-learn the Welsh way of accessing the same type of habitats, flora and fauna but shown in a different way.

The collection of laws and guidances all in one place is an excellent idea (i.e. Part II of the book) as its provides an alternative location for the shelves of separate legal acts and laws that one might have.  As the texts have been written by these two authors, both experts in legal matters, the texts are written in a familiar legal way with references to cases throughout, and cited in proper legal fashion. So the book is not for the general public. It is perfect, even at this advanced out-of-date stage, for law students, libraries and those of the general public who wish to dip in and extract a useful statement of case to support a local action.

It is not a book to review from cover to cover, so a dip into the index is a way in. The index could have been more inclusive. There were interesting sections of the book that on searching in the index that could not be re-found. The book is a useful gazzeter to information on all issues which may arise in issues to do with footpaths, bridlepaths, obstruction, barbed wire, signage, dogs etc.  I can see people dipping in to find who has priority on footpaths (cyclists, walkers or horse-riders) or what really counts as an Ancient path (particularly with keenness amongst walkers nationwide to register walkways before 2026).

Although The Blue Book came out in 2013 it just missed mentioning The National Planning Policy Framework (NPPF) which came out in 2012. The NPPF has been an important document in planning and is now in its July 2021 version, and its relevance to rights of way is something that could be addressed in a new edition of The Blue Book.  Even as the 2013 edition says that various matters were already on-line in 2013, there are many more laws on-line now, so perhaps there will be less call for this Blue Book in the future – and it may  go the same way as the text version of Encylopaedia Britannica – most niceties of the legal profession available with the click of a button – perhaps not all the niceties of nuances in case law  for which a real book would still be useful.  The book is good to have as a historical record, seriously and comprehensively up to date to 2013.