Chapter 4: The biodiversity duty
Operation of the duty
182.Section 40 of the NERC Act requires that any public authority “must … have regard … to the purpose of conserving biodiversity”. It goes on to state that “Conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat”.184 Section 40 is commonly known as the biodiversity duty. Section 41 of the Act requires the Secretary of State to publish a list of species and habitats which are of “principal importance” for the purpose of conserving biodiversity.185
183.A general theme from the evidence we heard was that the duty to “have regard” to biodiversity had been ineffective, and that the state of biodiversity continues to decline. It was considered to have had little practical impact for a range of reasons, including low awareness, poor understanding, a lack of reporting requirements, a lack of biodiversity knowledge and resources, weak wording and lack of enforceability.
184.The species and habitats referenced by the duty do not exist in isolation from the wider natural environment. Dr Nick Fox OBE has suggested that “Conservation should be about maintaining high levels of biodiversity, which is the sign of a healthy habitat. Biodiversity is not just about species diversity, but the structural diversity of habitats and the range of trophic levels. It’s not about encouraging the biggest population of any one species, but ensuring that each is in balance with the habitat and the resources”.186
Awareness and understanding of the biodiversity duty
185.While surveys indicate local authorities are formally aware of the duty,187 we were told that awareness is much more limited in the wider public sphere. Cotswold District Council informed us that there was limited understanding even within local authorities:
“Most biodiversity-related work is still either carried out by or referred to the local authority Biodiversity Officer/Ecologist rather than being seen as an issue for all departments to consider. Corporate plans might refer to conserving the natural environment, but there are very few examples of specific actions relating to biodiversity”.188
186.This point was supported by the Greater Lincolnshire Nature Partnership (GLNP), which stated that it had worked closely with local authorities and internal drainage boards and that “on frequent occasions senior (and junior) staff, in relevant departments, have been unaware of the duty, requiring the GLNP to explain it to them”.189
187.Wildlife and Countryside Link suggested that there was a similar situation in central Government, arguing that the duty “is predominantly seen as a Defra objective and when it is considered in other departments it is often taken as a relatively low-level ambition which can be addressed with a correspondingly low level commitment”.190 Martin Nesbit of the IEEP, a former director of Defra, stated that:
“I was never particularly conscious that my department was under the duty imposed upon it by Section 40. I suspect that perhaps one or two of the dozen or so people around the table at senior management meetings might have been aware of Section 40, but it was not something where people would say, ‘I had better think about our obligations under Section 40 of the NERC Act before making this decision’”.191
188.We were told that the Government was not taking enough action to promote awareness and understanding of the duty, and that while reference was made to raising the profile of the duty in the 2011 Natural Environment White Paper, “this was not included in the commitments at the end of the white paper and has not been reported on in subsequent updates. Reference to this statement in the [White Paper] is the sole reference to the duty in the England Biodiversity Strategy”.192
189.The Wildlife Trusts echoed this point, noting that the Defra Guidance for Public Authorities on Implementing the Biodiversity Duty had been withdrawn in 2015 and that the only guidance to replace it is now held on the gov.uk website. The Wildlife Trusts stated that:
“We consider this to be an inadequate replacement and of little help to those genuinely seeking advice. It has certainly done little, if anything, to take forward the recommendations of the review to improve the understanding of the duty and the responsibilities of public bodies”.193
190.This evidence was echoed by many others,194 including the National Farmers’ Union which stated that NE technical guidance had been “simplified to the point that it has become meaningless for the intended audience”.195 Sheffield City Council supported the view that understanding was poor even where there was a level of awareness of the Act.196
Reporting requirements
191.We were told that the lack of specific reporting requirements attached to the duty meant that it was impossible to quantify its practical impact.197 The Association of Local Government Ecologists told us: “The lack of any reporting requirement and reward/penalty for implementing/not demonstrating the duty of regard means there is little incentive for any local authority, with limited resources, to implement this duty to any significant degree”.198
192.The British Ecological Society made a similar point, noting that in Scotland and Wales there was a requirement for public bodies to report on their similar biodiversity duties at three-yearly intervals, and that this “could provide a simple way of strengthening the English duty … while introducing a legal reporting requirement will not automatically lead to full implementation of the biodiversity duty, it provides a clear measure of success”.199 Martin Nesbit suggested that any new reporting requirement could apply to a specified list of authorities, to be determined by the Secretary of State, in order to avoid the regulatory burden becoming too onerous or widespread.200
193.The Welsh Government told us that their new reporting requirement “provides an element of accountability as public authorities must demonstrate what they have done to comply with the duty” and that they anticipated the reporting requirement would help to improve adherence to the duty.201 Responding to the suggestion that such a reporting duty might be introduced for England, Defra informed us that “whilst it is plausible that additional provisions, such as a reporting requirement, might strengthen the duty, Defra would want to take a broad perspective and assess any such changes against alternative mechanisms for securing biodiversity gain”.202
194.We also heard that since the Act was passed in 2006 a number of biodiversity reporting requirements which previously applied to local authorities had been removed. These included an expectation for local authorities to report against their performance in managing local wildlife sites, as a result of obligations set out in National Indicator 197. The British Ecological Society stated that “while this indicator was relatively weak given that it was not related to planning, it was discontinued in 2010, and there are now no requirements on public authorities to report on any aspect of biodiversity performance”.203
195.The RSPB also voiced “considerable concern” that this and other requirements, including Biodiversity Action Plan targets, were no longer in place. It stated that “it is now considerably less clear what is expected of Public Authorities and what we are collectively trying to deliver for biodiversity”.204
The loss of biodiversity professionals, knowledge and resources
196.ALGE and others highlighted research indicating that biodiversity work areas had experienced cuts of at least 60%, and that only one third of planning authorities in England now had access to their own ‘in-house’ ecologist.205 In relation to the loss of ecologists, the RSPB stated that “we are concerned that this vitally important source of expertise has diminished rather than grown since 2010, and implementation of the duty will have suffered as a result”.206
197.Wildlife and Countryside Link expressed concern, in light of the reduction in trained ecologists, that “the majority of local authority planners lack ecological qualifications and had very little ecological training. Without the provision of adequate ecological expertise and data, planning decisions are likely to be seriously flawed”.207 This point was supported by the Chartered Institute of Ecology and Environmental Management (CIEEM) which stated that
“planners are ill-qualified to make biodiversity decisions and are not competent to do so; they do not claim to be so either but the requirement falls to them due to lack of resources”.208
198.Similar points were made by Ove Arup & Partners, who stated that “many Local Planning Authority documents come across as empty gestures in the direction of biodiversity”, and that “where ecological capacity is lacking, these decisions are left to the developer’s discretion, with consequences rarely positive for biodiversity”.209 The Association for Local Environmental Records Centres pointed out that only 70% of local authorities that could access locally collected biodiversity data were actually using them. They stated that “what is unknown is how local authorities who do not have access to this information manage to fully take biodiversity into account, under the duty set out in the Act”.210
Wording of the duty
199.We were consistently told that the wording of the biodiversity duty (to “have regard”) was too weak to be effective. We heard evidence211 that the stronger wording of the respective biodiversity duties in Scotland (to “further” biodiversity) and Wales (“must seek to maintain and enhance biodiversity” and “promote the resilience of ecosystems”) might have greater impact when combined with the reporting requirements discussed above, though neither duty has been in place long enough to provide substantive evidence.
200.Wildlife and Countryside Link noted that the duties in Scotland and Wales were comparatively stronger than that in England, and therefore recommended that English requirements should be strengthened.212 The Welsh Government explained that their new duty “encourages public authorities to mainstream biodiversity across the delivery of their functions and integrate it at an early stage in decision making”.213 Dr Jo Judge of the National Biodiversity Network said that “Scotland is slightly better and further in conservation, but the Environment (Wales) Act that came in last year takes it further with not only taking care of but enhancing biodiversity”.214
201.NE expressed scepticism as to whether the Scottish duty would be more effective in practice, stating that “when tested in the planning process, although the wording was stronger, it did not prove to have any more bite”.215 ALGE were somewhat sympathetic to this argument, stating that “experience from Scotland would suggest that the duty still doesn’t carry much weight” and that a much greater inhibiting factor was the lack of resources to fully implement the duty in any of the three nations.216
202.CIEEM made the same point, stating that “the duty in Scotland and Wales is better than the requirement in England. However, there is still the issue that the requirements need underpinning by the appropriate resources for delivery and implementation”.217 Chris Corrigan told us that “you could make the wording stronger, and the Welsh and Scottish examples are good examples of that. I would say that is necessary but not enough”.218
Enforceability of the duty
203.The final key theme of evidence relating to the biodiversity duty was its lack of enforceability. Shropshire County Council suggested that “there seems little point in raising awareness of this Act when any public body can simply say that they have ‘had regard to biodiversity’ but they have chosen not to undertake any work to enhance biodiversity”.219
204.In supporting its case for the weak enforceability of the duty, The Wildlife Trusts cited a 2008 Judicial Review to challenge a planning decision to approve warehousing and a lorry park at West Thurrock marshes:
“Their challenge centred on the fact that the developer (a public body) had failed to have sufficient regard for the existing biodiversity value of the site and had not satisfactorily applied the biodiversity duty. Dismissing the application to overturn the planning permission, the judge hearing the case (Mr Justice Mitting) described the Biodiversity Duty as being a ‘weak one’. This is a clear indication that the duty carries little legal weight”.220
205.Overall, it is evident that the duty might have had an initial positive impact by dint of raising awareness, within local authorities and other public bodies, of the need to have regard to biodiversity when taking decisions. Since 2006, however, the multiple deficiencies and weaknesses of the duty have become apparent. Given the progress made towards stronger wording and—importantly—extended reporting requirements in other parts of the UK, it is now clear that England is in danger of being ‘left behind’. This does not sit well with the level of ambition set out in the Government’s 25-year environment plan and, as such, the case for strengthening the biodiversity duty is clear.
206.It is clear from the evidence we have heard that the biodiversity duty is ineffective as it stands, for a range of reasons including poor awareness, poor understanding, the weakness of the wording of the duty, the lack of a reporting requirement or enforceability, and the lack of biodiversity knowledge and resources. It may not be possible to correct all of these weaknesses in short order, but some action must be taken.
207.The Government should consider changes to the wording of the duty, as the requirement to “have regard” for biodiversity is weak, unenforceable and lacks clear meaning. The stronger wording used in Scotland and Wales should be considered as alternatives if the evidence becomes clear that they have had a positive effect.
208.The Natural Environment and Rural Communities Act 2006 should also be amended in order to introduce an obligation to report to the new environmental body on the implementation of the Section 40 biodiversity duty. Such a duty could apply either to all public bodies, or a smaller number of bodies with biodiversity responsibilities, to be listed by the Secretary of State.
209.We further recommend that, following implementation of these changes, the Government should publish, and promote effectively, new guidance on implementation of the biodiversity duty.
The changing context since 2006, and implications for the duty
210.Approaches to conservation have changed substantially since 2006, and we heard that this might be reflected in a revised approach to implementing and enforcing a biodiversity duty. In particular, the British Ecological Society noted that “the concepts of ‘ecosystem services’ (the benefits people derive from the natural world e.g. food, flood protection or recreation) and ‘natural capital’ (the stock of natural assets from which these benefits flow, e.g. clean air, water or soil) have become increasingly influential in ecological science and environmental policy”.221
Box 1: What is Natural Capital?
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In evidence to the Committee, Professor Dieter Helm described natural capital as “just one of the three pillars of the capital of any economy”, along with human capital and manufactured capital. He added that “it is absolutely core to any economy… and to economic growth. It is capital, so it is about assets and the state of assets”. On the question of measurement, he stated that “the crucial thing in natural capital is to work out which bits really matter and to focus on the measurement of those”. The Government’s 25 year environment plan A Green Future states that natural capital is “the sum of our ecosystems, species, freshwater, land, soils, minerals, our air and our seas. These are all elements of nature that either directly or indirectly bring value to people and the country at large. They do this in many ways but chiefly by providing us with food, clean air and water, wildlife, energy, wood, recreation and protection from hazards”. The plan also states that “the value of natural capital is routinely understated”, estimating that, for example, if England’s woods and forests were assessed using a natural capital approach, the value of the services they deliver would be an estimated £2.3bn. Only a small proportion of this, at around 10%, is in timber values, with the remainder coming from other benefits such as human recreation and carbon sequestration. It adds that “this value is not captured by traditional accounting methods and is too often ignored in management and policy decisions”. With a natural capital approach, the Government’s Plan states that “we are more likely to take better and more efficient decisions that can support environmental enhancement and help deliver benefits such as reduced long-term flood risk, increases in wildlife, and a boost to long-term prosperity”. |
Source: Q 59 (Prof Dieter Helm CBE) and HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 19
211.The Society went on to highlight that Natural England’s Conservation Strategy includes “growing natural capital” as one of its key principles, but that “a duty to conserve natural capital or ecosystem services is not currently enshrined in English legislation”.222 It also observed that neither natural capital or ecosystem services are synonymous with biodiversity:
“The relationship between biodiversity, ecosystem processes and the provision of ecosystem services is complex and uncertain, as is the relationship between natural capital ‘assets’ and benefits. Biodiversity can be understood as both an element of natural capital that underpins the provision of services (and is therefore integral to the maintenance of those assets), and as an output, or benefit in its own right”.223
212.Professor Helm made reference to the Natural Capital Committee, which was created following the publication of the 2011 Defra White Paper The Natural Choice, and which acts as an independent advisory body to the Government on natural capital issues.224
213.Professor Helm took the view that the 25-year environment plan225 should be put on a statutory basis, but that “this plan will never be achieved unless a single body is given the statutory duty to deliver that outcome: the improvement of natural capital”.226 He also suggested that a natural capital duty or commitment might be a more effective means of incorporating a biodiversity duty:
“It is hard to think about improving natural capital without improving biodiversity. It is an absolutely central part of it. The trouble with having the objective of biodiversity as currently pursued is that it is not clear what it means … I do not think that in a natural capital world we would downgrade biodiversity. We would upgrade it. It is very downgraded within the existing framework”.227
214.Dr Stephanie Wray of the Chartered Institute of Ecology and Environmental Management welcomed the natural capital approach as a way of improving biodiversity. She told us that “using that approach we can be better understood; we can talk to people in clear terms about the things the environment provides for us rather than talking to other scientists about biodiversity”.228 She also stated that she would “strongly advocate that the [section 40] duty should be extended to include natural capital”.229
215.Dr Judge of the National Biodiversity Network concurred, telling us that “natural capital … can play a real part in helping us to conserve biodiversity”.230 She was more sceptical, however, about the immediate prospects of introducing a natural capital duty, stating that “it comes down to resources. At the moment it would be something that public authorities probably would not be able to do because they do not have the experience or the budget. If that was all in place then, yes, I think it could play a part, but it is not an easy or quick thing to do”.231
216.Stephen Trotter, of The Wildlife Trusts, told us that the natural capital concept could be used as part of a framework for future land management revenue generation following the UK’s departure from the EU:
“Yes, we have to help farmers, landowners and farm managers to invest in their own sites … we need to explore some of the ideas which [the Natural Capital Committee] has produced on how we can find new income streams for land management”.232
217.Mr Trotter added that:
“In the future, post the CAP, if land management payments are linked to clear objectives that we need farmers to deliver, whether that is pollinators, trees or soil restoration, it is incredibly powerful to say ‘right, that’s the goal. You work out how you deliver it’. It could be really effective”.233
This point was echoed by Dr Wray, who told us: “I would look for an approach to land management … which would deliver public benefits, public goods for public money, and look to restore damaged ecosystems”.234
218.Dr Hugh Ellis of the Town and Country Planning Association (TCPA) expressed more scepticism about the natural capital concept, stating that “the development of natural capital as an idea could be very powerful”, but that “many of the landscapes that I value extremely highly would feature nowhere on a valuation derived from some form of natural capital”.235 He added that “I think it can make a contribution, but if you try to use it as a technocratic way of separating values from decisions about the environment and people’s feelings about the environment, it will fail”.236
219.The Government’s recently published plan, A Green Future: Our 25 Year Plan to Improve the Environment, states that “we will also set gold standards in protecting and growing natural capital—leading the world in using this approach as a tool in decision-making”.237 It also goes on to state that:
“Over coming years the UK intends to use a ‘natural capital’ approach as a tool to help us make key choices and long-term decisions … when we use a natural capital approach, we are more likely to take better and more efficient decisions that can support environmental enhancement and help deliver benefits such as reduced long-term flood risk, increases in wildlife, and a boost to long-term prosperity”.238
While adopting this approach, the Plan also acknowledges that not all aspects of natural capital can be robustly valued at present and, as such, the natural capital approach needs to be regarded as a tool, rather than an absolute arbiter.239
220.It subsequently states that actions taken to implement the plan will include “working with interested parties to improve and expand the range of tools and guidance that support biodiversity net gain approaches, including through the future incorporation of natural capital measures”.240 It does not refer to specific measures to enhance or incorporate the biodiversity duty into a natural capital duty, and earlier written evidence to this Committee from Defra—published before the launch of the 25-year plan—suggested that:
“Whilst future policy ambitions … may require further action on mainstreaming biodiversity or wider consideration of natural capital in public sector decision making, there is a range of measures available to take forward these ambitions, and the department does not see any immediate requirement to modify the duty itself”.241
221.The Government’s draft revised National Planning Policy Framework, published in March 2018, includes new references to natural capital in the planning system. It states that planning policies should recognise “the intrinsic character and beauty of the countryside, and the wider benefits from natural capital” and that planning authorities should “plan for the enhancement of natural capital at a catchment or landscape scale across local authority boundaries”.242
222.Natural capital is an important tool for environmental sustainability and for the support and enhancement of biodiversity. It is not yet, however, a fully comprehensive concept, and in particular may not yet be advanced enough to offer a framework for investment in land management. We believe, however, that as the concept expands it has strong potential to be applied more widely as a tool of environmental policy, and we welcome the provisions to take account of natural capital in the draft revised National Planning Policy Framework.
223.We would encourage the Government to take concrete steps to fulfil the intentions set out in the 25-year environment plan to incorporate natural capital approaches into its environmental strategy. In particular, the Government should consider how the biodiversity duty contained in the NERC Act 2006 might be expanded or combined with a natural capital approach to enhance its effectiveness. This consideration should take into account the fact that limits of resource and understanding could mean it is not yet possible to establish a formal natural capital duty in law. The Government should also ensure that the Natural Capital Committee receives satisfactory resources to continue developing the concept and exploring its potential.
186 Dr Nick Fox, quoted in Charlie Pye-Smith, ‘The facts of rural life: Why we need better wildlife management’ (2015), p 7: http://charliepyesmith.com/wp-content/uploads/2016/11/Facts-of-Rural-Life-Final-SinglePages.pdf [accessed 13 March 2018]
194 Written evidence from British Ecological Society (NER0068), The Wildlife Trusts (NER0080), RSPB (NER0051), CLA (NER0026), CIEEM (NER0030), ALGE (NER0066) and Field Studies Council (NER0030)
197 Written evidence from Doncaster Metropolitan Borough Council (NER0046), Shropshire County Council (NER0055), ALGE (NER0048) and British Ecological Society (NER0068)
205 Written evidence from ALGE (NER0048), RSPB (NER0051) and Wildlife and Countryside Link (NER0078)
211 Written evidence from Doncaster Metropolitan Borough Council (NER0046), Shropshire County Council (NER0055), Wildlife and Countryside Link (NER0078), The Wildlife Trusts (NER0080), RSPB (NER0051), UKELA (NER0053) and Sheffield City Council (NER0054)
223 Ibid.
225 At that time unpublished.
227 Ibid.
229 Ibid.
231 Ibid.
236 Ibid.
237 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 9
238 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 19
239 Ibid.
240 HM Government, A Green Future: Our 25 Year Plan to Improve the Environment (11 January 2018), p 34: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/673203/25-year-environment-plan.pdf [accessed 13 March 2018]
242 Ministry of Housing, Communities & Local Government, National Planning Policy Framework: draft text for consultation (6 March 2018), p 48: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/685289/Draft_revised_National_Planning_Policy_Framework.pdf [accessed 13 March 2018]