Environment Bill

Explanatory Notes

New section 40A Biodiversity reports

842 Subsection (1) sets out the public authorities to which new section 40A applies. The scope of this reporting requirement is limited in comparison to the general biodiversity duty, as the latter applies to all public authorities. All local authorities and local planning authorities, excluding parish councils, will be required to produce biodiversity reports. It would not be reasonable to require other public authorities with few or no landholdings to produce reports, and so additional public bodies that must report will be designated by the Secretary of State in subsequent regulations as stipulated in subsection (8)(a).

843 Subsection (2) requires the public authorities identified in subsection (1) to produce biodiversity reports.

844 Subsections (3) and (4) specify the required content of a biodiversity report. In subsection (3), paragraphs (a) and (b) set out that this report will both reflect on the action the public authority has taken under the duty over the reporting period, and look forward to the actions it will take in the subsequent five-year reporting period. This qualitative information will be accompanied by quantitative data, as provided by paragraph (c). The specific data required will be stipulated in regulations issued by the Secretary of State; it could, for example, include the proportion of local wildlife sites in favourable condition. In addition to the required qualitative and quantitative information, paragraph (d) sets out that the public authority is free to include any other information it considers relevant. Subsection (4) specifies additional reporting requirements for local planning authorities – namely, the provision of information on biodiversity net gain. Local planning authorities must give a qualitative summary of the action they have taken to comply with mandatory biodiversity net gain, and any gains within their jurisdiction.

845 Subsections (5) to (7) set out the timing and frequency of reporting. Under subsection (5), the report must be published within 12 weeks after the end of the period that it covers, in order to ensure that the information shared is up-to-date and relevant upon publication. Subsection (6) sets out that a public authority must publish its first biodiversity report within three years of being designated as required to report, although it is at liberty to decide when to publish within this window. This applies both in cases when the public authority is designated on the introduction of clause 94 and when the public authority is brought into scope at a later point. After the first report, subsection (7) establishes that the public authority must publish subsequent reports at least every five years, though again it can choose when to publish within this window.

846 Subsection (8) creates a power for the Secretary of State to issue regulations that designate public authorities as required to report, and to further define what data must be included in the biodiversity report. This will ensure key quantitative data is reported in a consistent fashion across all reports, thereby making comparisons across the reports easier. Having such data defined in regulations will also allow for it to be updated in the future as required.

847 Subsection (9) clarifies that the reporting requirement will not apply to public authorities that do not exercise functions in England.

848 Subsections (10) and (11) establish that the regulations should be issued through a statutory instrument subject to the negative resolution procedure in Parliament.

849 Subsection (12) clarifies that the definitions within this section are the same as used in the wider section 40 duty and in clause 93.

Clause 95: Local nature recovery strategies for England

850 This clause provides for the creation of Local Nature Recovery Strategies (LNRSs) in England, for how the geographical coverage of each LNRS will be determined, and for the relationship between LNRSs and the biodiversity duty under the NERC Act.

851 Subsections (1) and (2) set out that the requirement for LNRSs applies to England and that, taken together, all areas of England will be covered by an LNRS.

852 Subsection (3) sets out that the area covered by each LNRS will be determined by the Secretary of State. This approach allows flexibility to make sure that the area covered by each LNRS balances the potentially competing needs to be ecologically meaningful (that is, based on the common geographic, geological, topographical or other physical features that help define the ecology of an area, and of sufficient scale to include a range of habitats and land uses) and align with existing administrative boundaries. It will also allow alignment of boundaries between neighbouring LNRS areas to avoid gaps or overlap. It is anticipated that the area covered by each LNRS will be approximately county-scale, but with the potential to vary to best accommodate differing local circumstances.

853 Establishment of the area covered by an LNRS is closely linked to agreement on the identity of the responsible authority, which will lead on the production of the LNRS. The process for doing this is set out in clause 96.

854 Subsection (4) states that the area of a local authority, other than a county council, may not be split between different LNRSs. This requirement reflects the importance of local authorities in producing and implementing the LNRS, and is intended to make it easier for individual local authorities to do so by making each LNRS area an aggregate of local authority areas. This requirement will also facilitate the agreement of individual LNRS boundaries, and make sure they operate at scales most relevant to local authorities.

855 The bodies included within the definition of "local authority" are listed in clause 96(2). County councils are exempted from the general prohibition in splitting local authorities between LNRSs because of their larger size, and the potential that not doing so would result in a de facto requirement that LNRSs conform to county boundaries, irrespective of ecological or other practical considerations. Whilst in many cases there may be good reason for LNRS and county council boundaries to align, it is reasonable to anticipate situations where this would not be the case.

856 Subsection (5) highlights the relationship between LNRSs and the duty to conserve biodiversity under section 40 of the NERC Act. The existing duty is modified by this clause to require that all public authorities must have regard to any relevant LNRS in the proper exercise of their functions.

Clause 96: Preparation of local nature recovery strategies

857 This clause sets out the process by which LNRSs are to be prepared, published, reviewed and republished. It also provides a power for the Secretary of State to make regulations regarding this process.

858 Subsection (1) sets out that each LNRS will be prepared and published by a "responsible authority". The requirement to publish the LNRS is to ensure that the LNRS is a publicly available document.

859 Subsection (2) states that the Secretary of State will appoint the responsible authority for each LNRS, and lists the authorities who may potentially be appointed. In addition to those local authorities listed at clause 99(2), the Secretary of State may appoint a mayoral authority, national park (including the Broads Authority) or Natural England.

860 It is intended that the appointment of the responsible authority will be by mutual agreement between the Secretary of State and the authority. Where the LNRS area corresponds with county or mayoral boundaries, it may be that the county council or mayoral authority would be well-placed to act as responsible authority. Where this is not the case, it would be preferable for the responsible authority to be another local authority, mayoral authority or national park to foster strong links between the LNRS and the land-use planning system and to benefit from existing local democratic mechanisms. Alternatively, Natural England would act as responsible authority.

861 Subsection (3) requires that the LNRS is reviewed and republished from time to time to ensure it remains current, relevant and forward-looking. Updates may be periodic or triggered by the Secretary of State publishing an updated national habitat map under clause 98(3). Regulations made under subsection (5) may introduce specific requirements regarding the timings for reviewing and republishing of LNRSs. Information collected and published under the NERC reporting duty is expected to provide an important resource when reviewing and republishing the LNRS.

862 Subsection (4) provides that the Secretary of State can make regulations to introduce further requirements regarding how LNRSs must be prepared and published; both in the first instance and in later versions. Subsection (5) provides a non-exhaustive list of some specific aspects of this process that regulations may provide for. These are:

provision of information by a local authority that is not the responsible authority;

agreement of the LNRS by all local authorities within the LNRS area;

the procedure for reaching agreement and resolving disagreements;

consultation requirements; and

timings for reviewing and re-publishing of the LNRS.

863 These regulations provide a mechanism for creating consistency and maintaining standards between LNRSs and for encouraging a broad, collaborative approach to producing LNRSs, involving a wide range of stakeholders from public, private and voluntary sectors. Regulations allow for a greater level of detail than would be appropriate in primary legislation, and can be updated more easily to reflect experience of good practice.

864 Subsection (6) sets out that regulations made under subsection (4) will be by statutory instrument subject to the negative resolution process.

Clause 97: Content of local nature recovery strategies

865 This clause defines the required content of an LNRS, setting out the general nature of the documents that each LNRS must comprise and the information that these documents must contain. It also provides for the Secretary of State to issue statutory guidance to provide further detail.

866 Subsection (1) provides that each LNRS must include (a) a statement of biodiversity priorities for the plan area and (b) a local habitat map for the full extent of the area under the plan, either through one or multiple maps.

867 Subsection (2) specifies what the statement of biodiversity priorities referred to under subsection (1)(a) must include. The required elements are:

a description of the plan area and its biodiversity;

a description of the opportunities for recovering or enhancing biodiversity;

the priorities for recovering or enhancing biodiversity; and

proposals of potential measures relating to those priorities.

868 In combination these elements are intended to provide a comprehensive vision of the current and future potential biodiversity value of the plan area, and some proposed practical steps that different bodies may choose to support to help make improvements.

869 Subsection (3) specifies what the local habitat map referred to under subsection (1)(b) must include. The required elements are:

national conservation sites;

local nature reserves (as designated under section 21 of the National Parks and Access to the Countryside Act 1949); and

other areas that, in the opinion of the responsible authority, are or could become of particular importance for biodiversity, or where the recovery or enhancement of biodiversity could make a particular contribution to other environmental benefits.

870 The term "national conservation sites" is defined in clause 97(3). National conservation sites and local nature reserves are treated separately because information on them will be made available to the responsible authority via different mechanisms. Clause 98 creates a duty on the Secretary of State to provide responsible authorities with mapped information on national conservation sites, whilst information on local nature reserves is held by local authorities. Where a local authority is not the responsible authority, a requirement for them to provide information on local nature reserves to the responsible authority could be introduced via regulations made under clause 96(4) to make sure that this forms part of the LNRS.

871 Subsection (3)(c)(i) is what is sometimes referred to as ‘biodiversity opportunity mapping’. Government is aware of more than a dozen different examples of biodiversity opportunity maps that have been produced by local authorities or on their behalf – such as Surrey Nature Partnership’s Biodiversity Opportunity Areas: the basis for realising Surrey’s ecological network. It is intended that LNRSs will build on and seek to accommodate existing best practice.

872 Subsection (3)(c)(ii) allows for the opportunities included in the local habitat map to consider other environmental benefits alongside recovering and enhancing biodiversity. For example, planting a new area of woodland for biodiversity would also sequester carbon, and potentially reduce the likelihood of flooding downstream. Intentionally targeting such multiple benefits may prove more cost-efficient and, in turn, such proposals may be more likely to be acted upon. Statutory guidance made under subsection (5) provides a mechanism by which approaches to including multiple environmental objectives could be applied consistently across all LNRSs.

873 Subsection (4) establishes that a local habitat map that only partially covers the area within the plan must correlate to the area of at least one of the local authorities within the plan area. This is intended to avoid an individual local authority, other than potentially a county council, from having to contribute to and consider more than one local habitat map.

874 Subsection (5) allows the Secretary of State to issue guidance on the information that an LNRS must include, in relation to the biodiversity priorities, the local habitat map or any other matter. Guidance is intended to assist responsible authorities in preparing an LNRS and to promote consistency between LNRSs.

875 Subsection (6) sets out that when the responsible authority is preparing an LNRS, it must have regard to any guidance that has been issued by the Secretary of State under subsection (5). This gives the guidance issued under subsection (5) greater standing and effect in achieving its purpose. The issuing of new or revised guidance would not require a responsible authority to revisit an LNRS that has already been published.

Clause 98: Information to be provided by the Secretary of State

876 This clause introduces a new duty on the Secretary of State to make available certain information to the responsible authority to assist with the production of the LNRS.

877 Subsection (1) requires the Secretary of State to prepare and publish a national habitat map for England.

878 Subsection (2) specifies that the national habitat map must contain:

national conservation sites; and

other areas that the Secretary of State considers to be of particular importance for biodiversity.

879 The term "national conservation sites" is defined in clause 99(3). Information on these sites is held by central government. Other areas of particular importance for biodiversity might include locations of scarce habitats or habitats upon which scarce species depend outside of existing protected sites.

880 Subsection (3) allows for the Secretary of State to review and republish the national habitat map from time to time. The distribution of different habitat types can be expected to change over time, and it is anticipated that technology, such as satellite imaging, may present new options for habitat mapping. Publication of an updated national habitat map may potentially trigger a responsible authority to review and republish its LNRS, as provided for in clause 96(3).

881 Subsections (4) and (5) require the Secretary of State to inform the responsible authority of any areas in the authority’s strategy area that the Secretary of State considers could both:

be of greater importance for biodiversity, or where the recovery or enhancement of biodiversity could contribute to other environmental benefits; and

contribute to establishing a network of areas for recovery and enhancement of biodiversity across England as a whole.

882 This provision is similar to that in clause 97(3)(c), which specifies that such areas are a required component of local habitat maps. Whilst the intention is that the large majority of such "biodiversity opportunities" are identified locally by the responsible authority through an open collaborative approach, subsections (4) and (5) are intended to also allow the Secretary of State to propose national priorities for an area. This might theoretically include future landscape-scale biodiversity projects.

883 Similarly to clause 97(3)(c)(ii), subsection (5)(a) allows for the opportunities identified by the Secretary of State to consider other environmental benefits alongside recovering and enhancing biodiversity. Thus, areas might include those identified for other environmental reasons that could also have a biodiversity benefit, such as forestry creation.

884 The requirement at subsection (5)(b) that the Secretary of State should consider that the areas identified could contribute to establishing a network of areas for recovery and enhancement of biodiversity reflects the intention that LNRSs should not exist in isolation but should aggregate together. Government has recognised the need for coordinated action to address biodiversity decline through, amongst other policies, the commitment to create a national nature recovery network in the 25 Year Environment Plan (which this Bill will make the first statutory environmental improvement plan). The information provided by the Secretary of State under this provision is intended to help individual responsible authorities develop LNRSs that can form the basis of an England-wide network for the recovery and enhancement of biodiversity.

885 Subsection (6) extends the duty on the Secretary of State to provide the responsible authority with information to anything else that the Secretary of State holds that the Secretary of State considers would assist in the preparation of an LNRS. Examples of such information might include other mapped information, like climate change assessments, soils, geology or topography that the Secretary of State considers might help the responsible authority assess the potential of a location for recovering biodiversity.

Clause 99: Interpretation

886 This clause offers clarification on the definition of the terms used in the preceding clauses on LNRSs.

887 Subsection (1) sets out that these interpretations apply to the entirety of this section on LNRSs.

888 Subsection (2) defines the term "local authority", setting out the different classifications of local government to which these clauses apply.

889 Subsection (3) defines the term "national conservation site", setting out the types of sites that must be included. This definition applies at both the local level for the responsible authority in developing the local habitat map that makes up the LNRS, and also at the national level for the Secretary of State in providing information to the responsible authority through the national habitat baseline map.

Clause 100: Controlling the felling of trees in England

890 Clause 100 introduces Schedule 15, which enables the Commission to create a local land charge where illegal felling has taken place or a licence has not been complied with. A local land charge is a public record and the buyer will take the land subject to the charge.

Clause 101: Local highway authorities in England to consult before felling street trees

891 Clause 101 inserts new section 96A into the Highways Act 1980.


Prepared 29th January 2020