In November 2021, the Environment Act 2021 became law introducing a wave of measures set to impact land and property developers. Alex Walmsley, solicitor in Harrison Drury’s property litigation department, examines the key provisions in the Environment Act 2021 and how they may affect developers.
Biodiversity Net Gain Targets
Biodiversity is defined as the variety of plant and animal life in a particular habitat. Biodiversity Net Gain (BNG) describes the process by which new developments may increase the levels of biodiversity present on a site. The provisions of the Act confirm the government’s previous announcement that new English developments will need to demonstrate a 10 per cent increase in biodiversity value on or near development sites.
This means, as a pre-requisite for any development that requires planning permission, a developer will need to demonstrate that the biodiversity value attributable to the development exceeds the pre-development value.
A biodiversity gain site register will be kept, requiring the developer to provide information in respect of its biodiversity net gain targets and developments. BNG is expected to become mandatory for all Town and Country Planning Act (TCPA) and Planning Act 2008 developments by Autumn 2023 and the site register should arrive thereafter.
It is therefore vital that developers start preparations now to ensure accurate records are kept reflecting the development’s position. This will require forensic analysis of all biodiversity measures taken and must be taken seriously. Any misleading and/or false information provided may lead to financial penalties further down the line.
Biodiversity Credit Scheme
In an additional arm to the above, the Environment Act 2021 has provided for offsite biodiversity gain sites and a biodiversity credit scheme.
This adds some flexibility for developers and potentially an additional stream of revenue for farmers and landowners.
Arrangements are yet to be made by the Secretary of State in relation to applications to purchase credits and the amount payable in respect of a credit of a given value, but it will be worth keeping up to date with this scheme and any further information published by the government in relation to this. Further updates are expected in Spring 2022 and Spring 2023 respectively.
Under section 118 of the Environment Act 2021, conservation covenants have hereby been given legal effect.
The way these mechanisms are intended to work appear to be very similar to restrictive covenants in that they are will be registrable against the title to a property by way of a local land charge and will exist in perpetuity unless a term of years is specified however there are a few key differences.
In summary, conservation covenants are voluntary, but legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body or not-for-profit body and are used to conserve the natural or heritage features of the land.
This would have the effect of tying the land indefinitely to conservation terms which, if breached, are enforceable by means of specific performance, injunction, damages and/or an order for payment of compensation to the relevant benefitting body.
We are yet to see the fallout from these new forms of covenants however, for further detail on conservation covenants, please note our previous blog post: What does a ‘conservation covenant’ mean for landowners?
If you require any advice on this area, please contact our property litigation department on 01772 258 321.
Office for Environmental Protection (OEP)
A major change the Act brings is the establishment of the Office for Environmental Protection (OEP). The OEP will now hold governmental and public bodies to account on their environmental obligations.
As most local authorities have declared a ‘climate emergency’ in their constituencies, this is likely to increase environmental targets which will be enforced in areas such as local planning and enforcement policy. Developers will be directly impacted by the changes, but it is important that they are wary of this new regulatory body.
Whilst it is yet to be seen the extent of the OEP’s powers and/or the enforcement measures, the OEP will be able to carry out investigations and take enforcement measures just like any other regulatory body.
Our team will look to provide further updates regarding these, as they arise.
The Harrison Drury property litigation team can advise developers and landowners on a wide range of property related matters. If you wish to discuss any issues raised in this article, or need help with any other property dispute matter, please contact our team on 01772 258 321.