After 21 months of Parliamentary process, the UK’s Environment Act 2021 gained Royal Assent (agreement) on 9 November and has now been published. The Act is arguably the most significant piece of UK environmental legislation since the introduction of Environmental Impact Assessment (EIA) back in 1988, and it’s also fairly unique as it makes specific provision for review and revision of requirements. This means we can expect consideration of progressively stringent requirements over time.
The Act implements Government’s ambitions for ‘improving the natural environment’, which were previously set out in publications including the 25 Year Environment Plan (HM Government, 2018). These ambitions have now formed the basis of statutory or legal requirements which mandate action, under the oversight of the newly formed Office for Environmental Protection (OEP).
While the Environment Act is now part of UK law, its required actions do not commence either directly or immediately, or at least not all actions for all parties. There remain a range of preparatory actions that need to be undertaken before further implementation of the wider legal framework (secondary legislation or regulations) will take place. So depending on who you are, and which country you operate in, you may need to take action now or you may need to prepare for action in near future.
The main focus of the Act is the “…provision for targets, plans and policies for improving the natural environment…” and its requirements are structured around a number of broad themes (noting this is not a comprehensive summary of the provisions):
Environmental governance – under Part 1, the Act focusses on targets, improvement plans, monitoring, principles, and reporting. While there is a focus on future action in the form of secondary legislation which the Secretary of State must draft, this also contains requirements that take immediate effect. One such immediate change is formal recognition of Government’s “A green future: our 25 year plan to improve the environment” as the first environmental improvement plan. We can expect to see a suite of supporting secondary legislation the first of which has to be published in draft by 31 October 2022.
Environmental regulation – under Chapter 2, the Act sets out the responsibilities of the Office of Environmental Protection (OEP) including those relating to scrutiny, advice and importantly enforcement of the provisions of the Act. The OEP commenced their responsibilities ahead of publication of the Act and we can expect to see further clarification of their responsibilities in future.
Waste and resource efficiency – Part 3 of the Act sets out requirements on producers and national authorities. These come into force either immediately (9 November 2021), after 2 months (9 January 2022) or at the point that the Secretary of State “by regulations appoints”. We can therefore expect to see future secondary legislation to fully enact these requirements.
Air quality and environmental recall – Part 4 of the Act sets out requirements relating to the local air quality management framework, smoke control areas and vehicle recall. It makes provisions for direct amendment of existing legislation and also for the Secretary of State at some future point to take action “by regulations appoints”. We can therefore expect to see future secondary legislation to fully enact these requirements.
Water – Part 5 of the Act makes various provisions including those around Water resource management plans and Drainage and sewerage management plans; storm overflows; regulation of water and sewage undertakers; abstraction, water quality and land drainage. These come into force either immediately (9 November 2021), after 2 months (9 January 2022) or at the point that the Secretary of State “by regulations appoints”. We can therefore expect to see future secondary legislation to fully enact these requirements;
Nature and biodiversity – Part 6 of the Act importantly makes provision for “biodiversity gain in planning” which will apply to applications under the Town & Countryside Act and the Planning Act. In addition, the responsibilities on Government or public bodies have changed, including through: - strengthening the existing biodiversity duty; - requiring biodiversity reports; - setting up local nature recovery strategy areas; - providing for national habitat mapping; and - establishing species conservation and protect site strategies. The actions of Government or public bodies will also inform planning decisions and applicants will need to respond to these reports and strategies. There remains some ambiguity as to when this part of the Act comes into force as the commencement section indicates that Part 6 will come into force at the point that the Secretary of State “by regulations appoints” and will therefore require future secondary legislation to fully enact. Section 98 and 99 do appear to introduce biodiversity gain requirements that make changes to the Town & Country Planning Act and The Planning Act. The commencement of these changes and whether secondary legislation will be required to enact them will have to be subject to legal interpretation and advice.
Conservation covenants – Part 7 of the Act makes provisions for conservation covenants which essentially support the “biodiversity gain in planning” concept by providing a mechanism through which any gains can be secured and managed. These come into force at the point that the Secretary of State “by regulations appoints”. We can therefore expect to see future secondary legislation to fully enact these requirements.
In summary the Environment Act provides an opportunity for us to deliver on Government’s expectations for environmental improvement by setting out a comprehensive legal framework which is just the start of regulatory changes. At SLR we are well placed to help our clients understand and to support planning response to these changes.
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