Last week, the Environment Act entered the statute book following a tortuous parliamentary journey of almost three years as it was stalled and delayed due to Brexit, a general election and Covid.
Although the contents of the legislation are a well-trodden path, it’s worth recapping the key elements. The act, which applies to England, has several parts, covering issues such as environmental governance, waste and resources efficiency, air quality, water, nature and biodiversity and conservation covenants.
This sets the framework for future environmental policy, with several key elements that will guide the government’s action in the future. This includes:
- The introduction of long-term Environmental Improvement Plans prepared by Defra (with the current 25 Year Environment Plan the first of these);
- A requirement for Defra to introduce long-term, legally-binding environmental targets in priority areas such as water, air quality, biodiversity, resource efficiency and waste reduction;
- The adoption of a set of environmental principles, including the precautionary principle and the polluter pays principle, which all government departments must integrate into policy-making;
- The creation of a new Officer for Environmental Protection (OEP) to monitor environmental policy and enforce environmental law.
The aim is to make the environment more prominent within the government’s decision-making and to set a direction for policy. Government departments will need to think in the long term to meet specific environmental targets, and to consider the environmental impacts of a new policy. The new OEP will act as a watchdog – making sure the government sticks to its plans and commitments, and that these are sufficient to have a real-world impact – leading to genuine improvements in the nation’s environment.
Although this might seem like technical detail – which is important to how the government goes about its business but not that relevant to land managers or businesses on the ground – this new system of governance will set the direction for new policy that certainly does have an impact on CLA members on the ground.
Targets, in particular, are likely to make it more important that policy is focused on environmental outcomes. For example, the government (and the OEP) are likely to be more forensic in their analysis of what environmental public goods are delivered for the money invested in the new Environmental Land Management (ELM) schemes. This is an opportunity for CLA members – most environmental targets cannot be met without the right land management. But if new policies fail to deliver the environmental improvement that is now a legal requirement, there will be calls to change track. There will always be a temptation for the government to look for quick environmental wins from regulation if incentives to land managers are not working.
The CLA has been supportive of these measures – we think that it makes sense for the government to take a coherent and long-term view when making policy. This will help provide certainty to businesses and help them plan for the future. As with climate change setting a long-term target gives each sector something to aim towards. The hard work is now to follow to work out how to translate national environmental plans and targets into action at a local, farm or business level.
Missing from this chapter, however, is any mention of heritage and the historic environment. Although included in the current 25 Year Environment Plan, the new act does not define heritage as part of the environment. This means that plans and targets could easily overlook it, with a knock-on impact on the levels of funding and types of funding available for the management of the historic environment.
The water chapter focuses mostly on drainage, supply resilience and abstraction, much of which is aimed at water companies and regulators. However, this part was also the scene of hard-fought battles between the CLA and the government on the reform of abstraction licensing. The new law allows abstraction licenses to be removed without compensation, either if they are under-used or if the abstraction is causing environmental damage. Despite our best efforts, these clauses remain in the act, and we believe some CLA members who are abstractors will face the risk of losing their licenses. The fact that compensation will not be paid will be particularly galling to affected members, given that abstraction licenses are a private property right.
Relatively late in the bill’s passage, under pressure from the public and House of Lords, the government also added amendments to the water chapter to deal with sewage pollution. These changes are welcome, as farmers often bear the brunt of criticism for water pollution. It is good to see some focus on some of the other sectors responsible.
The act has the potential to dramatically change the way the environment is managed in England.
Nature and biodiversity
The chapter on nature and biodiversity contained two elements that could have the most impact on our members: the introduction of biodiversity net gain and local nature recovery strategies.
Biodiversity Net Gain (BNG) will require future development projects to demonstrate a net gain in biodiversity. A baseline biodiversity assessment of the land will need to be carried out and the gain is calculated based on the value once the development is complete. The aim is to avoid and minimise the amount of wildlife habitat lost to development. Where this cannot be avoided, compensatory habitat must be created to offset the impact – either on or near to the development site. Alternatively, developers can purchase biodiversity credits to comply with the new law.
The CLA has supported this policy since it was first piloted several years ago. We believe it will offer an opportunity for landowners to deliver either offsets or credits needed, providing an additional income source for environmental management in the countryside.
The other development is the introduction of Local Nature Recovery Strategies (LNRS), which will be used to identify priority areas for nature in local areas. LNRS will be used to target funding from both net gain and the new ELM schemes. The CLA recently responded to the government’s consultation on the introduction of LNRS. We highlighted the importance of landowners and land managers being involved in the process – as in many cases, they will be the people delivering local nature recovery on the ground.
A final innovation within the act is the introduction of conservation covenants. These are a new legal tool that allows landowners to enter into voluntary, private agreements with a “responsible body” to manage their land for conservation purposes. With the rise of environmental markets, including net gain, these offer one form of agreement that could underpin environmental contracts. The main innovation is that a conservation covenant runs with the land, meaning that it is binding on successors in title. This offers a greater level of certainty for investors that the environmental outcomes, whether for wildlife, water or climate change, will be secured for a long time period.
Putting the act into practice
Much of the Environment Act gives the government the power to take certain actions in the future, with the details to follow in future regulations or policy.
Coupled with the Agriculture Act, which provides the foundation for public payments for public goods, and the rise of private environmental markets, this law could at least set us down the road towards solving the climate and ecological crises that we face.
Farmers and land managers hold the key to success and so the CLA will be maintaining pressure on the government to ensure the implementation of the many elements of the new act work in practice for our members and the rural economy.