Environment Bill

Explanatory Notes

New section 37C Further provisions about disclosure under section 37A or 37B

819 New section 37C includes provisions stipulating how the disclosure of information permissible under new sections 37A and 37B relate to certain existing legislation. In particular, subsections (4) and (5) confirm that certain information disclosed under new sections 37A and 37B is exempt from disclosure under the Freedom of Information Act 2000.

Part 6: Nature and Biodiversity

Clause 90: Biodiversity gain as condition of planning permission

820 Clause 90 refers to Schedule 14, which applies a new general condition to all planning permissions granted in England, subject to exceptions. This condition requires that a biodiversity gain plan must be submitted and approved before development may lawfully commence.

Clause 91: Biodiversity gain site register

821 Subsections (1) to (3) make provisions for a public biodiversity gains sites register. They define some of the eligibility criteria for land to be included on the register, including that it must be maintained for at least 30 years after the completion of enhancement works, and set out how the benefits of habitat on the register might be allocated to a development. The register is intended to provide transparency in offsite enhancements for developers, planning authorities and others, and to help parties to confirm that any offsite biodiversity gains are only allocated to a single development and that the necessary agreements to deliver biodiversity gains are in place. The intention is that the register will also facilitate monitoring of biodiversity gain delivery and its outcomes by indicating what outcomes are expected where.

822 Subsections (4) to (6) set out what regulations under this section are likely to provide for, including details of the procedure for registering land in the biodiversity gains site register, the criteria that must be satisfied for the enhancement of land to be registered, and the arrangements for amending or removing land on the register. Subsection (5) also allows provisions under subsection (4)(c) to guide the process of making and determining applications to register land as biodiversity gain sites and to provide for financial penalties that could be incurred by providing false or misleading information when registering a biodiversity gain site. Subsection (6) sets out further information requirements which will be fundamental to the register, such as the location and area of land and who will be responsible for carrying out the works to enhance biodiversity. Subsection (6) also explicitly references the allocation of biodiversity enhancement to a particular development, which will be important in preventing the ‘double-counting’ of a given enhancement (or the units that it creates).

823 Subsections (7) to (9) set out procedures for making these regulations, and align definitions of some terms with those set out in Schedule 7A to the Town and Country Planning Act 1990.

Clause 92: Biodiversity credits

824 Subsections (1) to (5) make provision for the Secretary of State to set up a system to sell a supply of statutory biodiversity credits to the habitat compensation market. The provision of statutory credits will be made in England only. The sold credits will be equivalent to a specified gain in biodiversity value, which will be eligible for inclusion in a biodiversity gain plan. Subsection (3) sets out the arrangements that may be made for the scheme and the operation of the scheme. Subsection (4) requires the Secretary of State, in considering the price of a biodiversity credit, to set this at a level that does not discourage the development of local market schemes and non-credit habitat creation projects. The government intends to conduct a further review of the price of units, following engagement with stakeholders, before setting a price. The intention is that the price of biodiversity credits will be higher than prices for equivalent biodiversity gain on the market. Subsection (5) will require the Secretary of State to make information on the price of the units and their operation publicly available.

825 Subsection (6) sets the framework that the Secretary of State must consider when handling the proceeds of the credits. Proceeds from the sale of credits will contribute to strategic ecological networks and provide long term environmental benefits, and would be additional to existing requirements. This framework includes a provision that funds collected via this mechanism must be used for the purpose of securing biodiversity gain. Subsection (7) makes provision to exclude works to enhance habitat from the system where there is an existing requirement for the Secretary of State to act – for example, where land is subject to alternative legislative requirements such as where a public body manages a Site of Special Scientific Interest. Through the Wildlife and Countryside Act 1981 (as amended), public bodies have a duty to take reasonable steps to further the conservation and enhancement of the special features of Sites of Special Scientific Interest.

826 Subsections (8) to (10) require the Secretary of State to report on the operation of the biodiversity credit system on an annual basis. This includes setting out the total funding received and how this has been spent in securing habitat enhancement, which should include an assessment of the value of created habitats in terms of biodiversity units.

Clause 93: General duty to conserve and enhance biodiversity

827 Section 40 of the Natural Environment and Rural Communities Act 2006 ("the NERC Act") places a duty on public authorities to have regard for the conservation of biodiversity when delivering their functions. This clause makes textual amendments to section 40 of that Act, to avoid repeating definitions. The revisions make more explicit the requirement for public authorities to assess how they can take action to conserve and enhance biodiversity, and then take these actions. This clause also sets out how public authorities should abide by the revised duty.

828 Subsection (2) adds to the heading of the biodiversity duty in the NERC Act, setting out that this duty is changing from "conserving" to "conserving and enhancing" biodiversity.

829 Subsection (3) replaces existing subsections (A1) and (1) of the NERC Act with new subsections (A1) to (1F).

830 New subsection (A1) defines the term "general biodiversity objective", which is used in section 40 to direct the activity taken by public authorities under this duty. This extends the duty of public authorities beyond the original NERC Act, which referred only to conservation, so that it includes the enhancement of biodiversity in England. The aim is to provide for the enhancement or improvement of biodiversity, not just its maintenance in its current state.

831 New subsection (1) sets out that, in order to comply with the revised biodiversity duty, a public authority must periodically consider the opportunities available to improve biodiversity, across the full range of its functions. This represents a proactive, strategic assessment of a public authority’s functions, rather than considering each function in isolation as required by the original section 40 duty.

832 New subsection (1A) sets out the process that the public authority must undertake following the strategic assessment. It may decide there is no action it can reasonably take that is consistent with the proper exercise of its functions. For example, it may decide a particular action is not possible within existing budget constraints, not good value for money or conflicts with other priorities. If there is action it can take, however, then paragraph (a) sets out that it must decide how that action can be put into effect, through appropriate policies and objectives. Paragraph (b) then requires the public authority to take the action.

833 New subsection (1B) provides further detail on those activities considered to be contributing to the general biodiversity objective. It establishes that the duty can be satisfied by adjusting existing policies and objectives, rather than requiring public authorities to introduce new policies or undertake new projects.

834 New subsections (1C) to (1E) establish the frequency with which the public authority should consider how it can improve biodiversity and then take action. New subsection (1C) provides that the initial assessment must be completed within one year of the amended duty coming into force. New subsection (1D) sets out that subsequent assessments to determine whether there is action it can reasonably take, and what that action should be, must take place at least every five years. New subsection (1E) requires that the decisions around which policies and objectives can be used to further the biodiversity objective, as required by subsection (1A)(a), should then follow as soon as is practically possible.

835 New subsection (1F) explains that, although the requirement is to evaluate opportunities to fulfil the general biodiversity objectives "from time to time", a public authority is free both to carry out a strategic assessment of its policies and specific objectives and to take action for biodiversity at any interval, as long as this consideration takes place frequently enough to satisfy new subsections (1C) and (1D).

836 Subsection (4) of clause 93 amends an existing reference in section 40(2) of the NERC Act to ensure it refers to new subsections (1) and (1A) of the same section.

837 Subsection (5) of clause 93 requires that public authorities consider any relevant Local Nature Recovery Strategies (LNRSs) as part of their strategic assessment of their functions, establishing the relationship between the two measures. LNRSs map existing important areas for nature and show the opportunities that exist in an area to recover and enhance nature. LNRSs will support public authorities in deciding the most appropriate and effective action to take to further the biodiversity objective under new section 40(1A) of the NERC Act, and in turn subsection (5) will support the implementation of LNRSs.

838 Subsection (6) updates the existing explanation of "conserving biodiversity" by directing public authorities to give particular focus to the conservation, restoration and enhancement of species and habitats when deciding the actions to take under the biodiversity objective. This particular emphasis on species and habitats reflects their significance within biodiversity overall, and the wider benefits for nature and society that can be accrued through actions for species and habitats.

839 Subsection (7) provides that in the case of HMRC, the duty does not apply to its functions in England alone, but also extends to its functions in Wales. This is to maintain the amendment made to section 40 by the Environment (Wales) Act 2016. This subsection also clarifies the spatial extent of the general biodiversity duty, establishing that the territorial sea adjacent to England falls under the duty.

840 Subsection (8) amends section 41 of the NERC Act so that its references to section 40 correctly reflect the amendments made by this Bill.

Clause 94: Biodiversity reports

841 This clause adds new section 40A to the NERC Act, which creates a power for the Secretary of State to designate public authorities who are required to report on the action they have taken under the biodiversity objective set out in clause 93. It also defines, at a high level, the content of the biodiversity reports and their frequency. These reports will capture how public authorities with significant landholdings have sought to conserve and enhance biodiversity, and will contribute to the improvement of information on protected sites, priority habitats and priority species.


Prepared 29th January 2020