Environmental legislation post-Brexit: an environmental activist's guide to Environmental legislation post-Brexit: an environmental activist's guide

  • Posted on: 16 September 2022
  • By: monica
Lisa Foster

Lisa Foster, a Partner with Richard Buxton Solicitors, offers unique insights into post-Brexit legislation, specifically the The Levelling Up and Regeneration Bill, and the Environment Act (EA)2021, and what these mean for those involved in environmental activism and campaigning. In particular, she examines:

 

1. Changes in the EA 2021 to s.40 of the Natural Environment and Rural Communities Act 2006 (“NERCA”) what are they and what do they mean in practice. What is required now and how will those duties change when the EA 2021 comes into force

 

*Section 40 of the NERCA applies to any public authority exercising its functions in England “so far as it is consistent with the proper exercise of those functions”.

 

*A key NERCA provision, known as the ‘section 40 duty’ or the ‘biodiversity duty’, states that public authorities must “have regard … to the purpose of conserving biodiversity”. Conserving biodiversity includes, in relation to a living organism or type of habitat, “restoring or enhancing a population or habitat”.

 

*Changes to the Section 40 duty introduced through section 102 and 103 of the Environment Act 2021 are intended to reinforce the role of local planning authorities to further broaden LPA duties to enhance biodiversity. These provisions modify the title of the section to introduce the concept of enhancement and rewrite the “have regard to duty” to frame a “general biodiversity objective” and to introduce a mandatory requirement for biodiversity net gain into the planning functions. The general duty is defined as “the conservation and enhancement of biodiversity in England through the exercise of functions in relation to England.”

 

2. How the EA 2021 biodiversity net gain (BNG) calculator works in practice, and is this greenwashing? – a view from practical experience in some case work before this becomes mandatory when the EA comes into force.

 

3. What changes to the EIA/SEA regime are proposed by the Levelling Up and Regeneration Bill? If the changes go through as proposed, will EIA as we know it survive and if not where could that leave the huge body of case law on EIA?