The Environment Act 2021: biodiversity net gain condition legislation receives royal assent


12th November 2021

Earlier this week, the Environment Bill 2021 received royal assent and is now the Environment Act 2021. This represents a significant milestone in environmental statutory change following Brexit and an extended parliamentary process with significant delays.

Key amendments made in the final stages of consideration of the Bill, now contained in the Environment Act 2021, include:

  • That the Secretary of State (SoS) can issue guidance to the newly established Office for Environmental Protection (OEP) on enforcement policy. Given, the OEP’s role as the environmental watchdog for England, Parliament was concerned this  function could be perceived as encroachment from the Government on the OEP’s discretions under the Act.
  • That the Court’s powers have been extended to include the ability to issue remedies in limited circumstances following environmental review. The criteria for granting a remedy in these circumstances includes the necessity to prevent serious damage to the environment and in cases of exceptional public interest.
  • That sewerage undertakers must progressively reduce the impact of discharges from storm overflows and complete annual reports. Additionally, by 1 September 2022, the Government must publish a plan on how to reduce sewerage discharges.

The passing of the Environment Act 2021 is most significant change in environmental law for the year so far and marks the introduction of the biodiversity net gain condition for development and brings a mandatory condition for most development to achieve a 10% biodiversity net gain.

On-site commitments must be secured through a condition, planning obligation or conservation covenant and be maintained for at least 30 years following completion (noting that this time scale can be reviewed by the SoS). If objectives cannot be maintained on-site, two compensation mechanisms are available to demonstrate compliance through either biodiversity gain sites or through the purchase of biodiversity credits.

The key challenge for developers that stems from this new mandatory condition will be the impact on the viability of their projects. Accordingly, site appraisal as to its biodiversity value prior to acquisition should be undertaken for new projects to ensure that the biodiversity net gain objective can be complied with.

If you would like any further information on the implications of the Environmental Act 2021 to your specific project, please contact the Blake Morgan environment and planning team.

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