Policy paper

September 2021: Nature and conservation covenants (parts 6 and 7)

Updated 1 April 2022

Headlines

1. As a core part of our commitment to leave the environment in a better state than we found it, the Environment Bill now requires a new, historic, legally binding target to be set to halt the decline in species abundance by 2030 . This is in addition to the requirement to set at least one long term legally binding target for biodiversity.

2. The nature and biodiversity measures in the Environment Bill will help us to achieve this target, by building on the existing range of legal provisions to protect sites, landscapes and species. They will introduce new duties, tools and support to improve nature. Our 25 Year Environment Plan marked a step-change in ambition for wildlife and the natural environment.

3. The Nature Recovery Green Paper will set out our approach to driving nature recovery and provide the primary vehicle for developing and engaging on our future plans and proposals.

Context

Nature is in decline globally and in the UK. Between 1932 and 1984, we lost 97% of our species-rich grassland, five species of butterfly have disappeared from England in the last 150 years, and indicators showing the state of birds dependent on farmland stand at less than half their value compared to 1970.

In England we already have strong protections in place for our most treasured sites and most threatened species. The 2030 species abundance target will set an ambitious goal which will drive action on the ground to go further and to work towards halting the decline of nature. We are already taking action to fulfil this ambition:

• We are investing in tree planting and peatland restoration in England through our Nature for Climate Fund, which will support the mitigation of climate change, and the creation of a Nature Recovery Network of better connected and wildlife-rich habitats. We have also published an England Trees Action Plan and England Peat Action Plan to set out our visions and programmes to increase tree planting and peatland restoration.
• The UK is at the forefront of marine protection with 372 Marine Protected Areas protecting 38% of UK waters.
• We are introducing three new schemes that reward farmers and land managers for producing the public goods set out in the 25 Year Environment Plan, including thriving plants and wildlife. These schemes are the Sustainable Farming Incentive, the Local Nature Recovery scheme and the Landscape Recovery scheme.

The Bill measures will also enable localised action to be taken across the country, directing investment in nature where it is most needed.

What does the Bill do?

There are 10 main measures in the Bill. Together these are designed to deliver long-lasting action for nature:

1. Local Nature Recovery Strategies

Local Nature Recovery Strategies (LNRSs) are a new system of spatial strategies for nature, covering the whole of England. Each strategy will, for the area that it covers:

• map the most valuable existing habitat for nature
• map specific proposals for creating or improving habitat for nature and wider environment goals; and
• agree priorities for nature’s recovery

This new mandatory system of spatial strategies for nature, will cover the whole of England. Locally led by an appropriate ‘responsible authority’, these will identify the opportunities and priorities for enhancing biodiversity and supporting wider objectives such as mitigating or adapting to climate change in an area. The Bill will give the Secretary of State the power to determine what area each LNRS should cover and to appoint a ‘responsible authority’ to lead its production and publication.

LNRSs will guide smooth and effective delivery of biodiversity net gain and other nature recovery measures by helping developers and planning authorities avoid the most valuable existing habitat and focus habitat creation or improvement where it will achieve the best outcomes.

We have tabled an amendment at Report stage to require Government to set out in guidance how LNRSs should be considered by local planning authorities. This will embed local nature recovery within the planning system.

2. Biodiversity net gain

The government announced in 2019 that it would mandate biodiversity net gain to ensure that new development enhances the environment, contributes to our ecological networks and conserves our precious landscapes. This followed a public consultation on net gain and clarification of planning policy on net gain in 2018.

The Bill will make it mandatory for housing and development, subject to some narrow exemptions, to achieve at least a 10% net gain in value for biodiversity – a requirement that habitats for wildlife must be left in a measurably better state than before the development. Developers must submit a ‘biodiversity gain plan’ alongside usual planning application documents. The local authority must assess whether the 10% net gain requirement is met in order to approve the biodiversity gain plan.

We want biodiversity enhancements to be delivered on-site where possible, and developers will need to show that they have taken available and proportionate actions to achieve net gain on-site. If net gain is not achievable on site, the biodiversity gain plan will need to include off-site habitat enhancements; the local authority must be satisfied that this is secured through a planning obligation or conservation covenant for at least 30 years. If habitats are significantly enhanced within the development site, these improvements must be secured in the same way or through a planning condition. A government amendment has also been tabled which will allow government, following evaluation of mandatory net gain in practice, to extend the minimum 30 year duration for which new biodiversity gains must be secured in future.

The biodiversity net gain requirement builds on existing good practice in industry and planning policy, including the mitigation hierarchy, and will include simplified processes for small developments.

The Bill also applies a biodiversity gain objective to nationally significant infrastructure projects (NSIPs) which are consented under the Planning Act 2008. The requirement for these larger projects is applied in a different way to accommodate their different characteristics and consenting regime.

3. Species Conservation and Protected Site Strategies

A Species Conservation Strategy is a new mechanism to safeguard the future of particular species at greatest risk. The strategies will find better ways to comply with existing legal obligations to protect species at risk and to improve their conservation status. It builds on the success of the district level licensing approach for great crested newts.

A Protected Site Strategy will seek to achieve a similar purpose in respect of protected sites. The concept of a Protected Site Strategy is broad and it includes any approach to mitigation or compensation that is wider than the individual project level. They will be particularly helpful where evidence shows sites are being affected by a range of different impacts. There will be a whole variety of solutions that a strategic approach can lead to depending on the factors affecting the site’s condition and the local circumstances.

Species Conservation and Protected Site Strategies are designed to provide a more strategic approach to the complex challenge of protecting and restoring species and habitats. Both strategies will avoid the need to identify project-specific solutions which can be difficult, time-consuming and costly to implement. The measures will place a new duty on local planning authorities to cooperate with Natural England and other local planning authorities and public bodies in the establishment and operation of the strategies. The strategies will feed into Local Nature Recovery Strategies, support local planning authorities and other public authorities in discharging their duty in respect of biodiversity and developing Local Plans, and complement plans for biodiversity net gain.

4. A strengthened biodiversity duty

The Natural Environment and Rural Communities (NERC) Act 2006 currently includes a duty on public authorities to have regard to the conservation of biodiversity. We will amend this duty so that there is an expectation on public authorities to look strategically at their policies and operations from time to time (at least every 5 years) and assess what action they can take ‘to further’ the conservation and enhancement of biodiversity. They must also have regard to the relevant Local Nature Recovery Strategies, Species Conservation Strategies and Protected Sites Strategies, as part of the consideration.

The Bill also introduces a streamlined reporting duty which requires local authorities and certain designated public authorities to produce a Biodiversity Report every five years. These Reports will be an opportunity to describe action taken and its impact, which can then be used to guide future action. Biodiversity Reports by local authorities will include a summary of action taken under the biodiversity net gain policy. The reports will also provide valuable information to update Local Nature Recovery Strategies, which we envisage will happen shortly after to help establish a virtuous cycle of planning, acting, reporting and updating.

5. Wildlife licensing

The Bill will provide clarity and consistency in law for the licensing regimes for species that are protected by the Wildlife and Countryside Act 1981 and species that are protected by the Conservation of Habitats and Species Regulations 2017. This will further support Species Conservation Strategies by allowing for greater flexibility when deciding whether to grant a licence and extending the licensing period from two years to five years. These changes will not weaken the strict protections that are in place for our most vulnerable species.

The Bill also amends the Wildlife and Countryside Act 1981 to introduce an additional purpose for granting a protected species licence in relation to development, ‘for reasons of overriding public interest’, and two additional tests for the granting of such licences: that there is ‘no other satisfactory solution’ and that granting the licence is ‘not detrimental to the survival of any the population of the species concerned’. These changes will reduce the scope for unlicensed activities to provide clear safeguards before licences can be granted, providing legal certainty and clarity to developers about their environmental obligations.

6. Duty to Consult - Trees

This clause introduces a duty on local highway authorities to consult with local communities before felling street trees, unless the trees qualify for certain exemptions. We will provide guidance for local highway authorities to determine whether trees are exempt in due course.

This will give communities an opportunity to understand why a tree is being felled in their local area and, if they wish, to raise concerns to the local highway authority regarding the felling of trees. This will increase transparency around decisions over these green assets.

Separately, on 18 May 2021, we published our England Trees Action Plan, which sets out our long-term vision for trees, woodlands and forests in England, and the actions we’ll take during this Parliament to achieve our ambition.

7. Conservation covenants

These are voluntary but legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body or for-profit body to conserve the natural or heritage features of the land.

Conservation covenants can contain positive and restrictive obligations to fulfil conservation objectives for the public good. They are a flexible tool – the parties can negotiate the terms (including the duration) of a conservation covenant to suit their circumstances. Generally, they will bind subsequent landowners and therefore have the potential to deliver long-lasting conservation benefits.

Conservation covenants can be used to secure the benefits delivered by biodiversity net gain and other measures for the long term.

8. Nature restoration – powers to re-align our nature protection rules with our ambition

New provisions introduce a power to amend Regulation 9 of the Conservation of Habitats and Species Regulations 2017. This power will enable alignment of the Regulations with our new world leading targets, particularly the 2030 species abundance target, and our binding international obligations. The provisions also introduce a power to amend Part 6 of the Regulations dealing with the Habitats Regulations Assessment (HRA) process. Where the evidence suggests that amending the Regulations can improve the natural environment, make the processes clearer and more legally certain to help recover the condition of our sites, we will have the means of doing so swiftly. Defra plans to publish a Nature Recovery Green Paper before the end of the year. The paper will set out our approach to driving nature recovery and provide the primary vehicle for developing and engaging on our future plans and proposals.

9. Strengthening forestry enforcement measures

The Forestry Act 1967 is over 50 years old and requires amendment to function effectively.

The forestry enforcement measures will increase fines for illegal felling (to unlimited fines); introduce a court ordered Restocking Order to be made by the courts and allow for the Forestry Commission to list Restocking Notices and Enforcement Notices on the Local Land Charges register. They will also streamline the administrative process for the Forestry Commission; and provide clarity to some existing clauses, making it easier to enforce where illegal activity has taken place.

These amendments will increase the deterrent for illegal felling, and streamline administration for the Forestry Commission.

10. Due diligence

The Bill introduces world-leading measures to tackle illegal deforestation across the globe, demonstrating international leadership ahead of the UN Climate Change Conference in Glasgow. This takes the form of 3 new requirements on regulated businesses. Firstly, regulated businesses are prohibited from using forest risk commodities that were unlawfully produced on deforested land. Secondly, businesses must establish a system of due diligence for each regulated commodity and must identify, assess and mitigate the risk of illegally produced commodities entering their supply chain. Finally, regulated businesses must report publicly each year on their due diligence exercise.

To ensure businesses comply, the Secretary of State will be able to establish an enforcement system, and to use an enforcement body to investigate businesses’ compliance with the requirements. Fines and other civil sanctions may be issued to businesses who don’t follow the rules.

The provisions also require the Secretary of State to conduct a review of the law’s effectiveness every two years, and to set out before Parliament any steps they intend to take to ensure that this policy is delivering as intended.

Further information

Is the Bill ambitious enough to reverse declines in biodiversity?

The Environment Bill will sit alongside existing legislation protecting habitats and species and the provisions in the Agriculture Act which ensure we can pay those managing the land for delivering public benefits such as reversing biodiversity declines. It introduces a range of ambitious measures to address biodiversity loss, driven by a new, historic, legally binding target to halt the decline in species abundance by 2030.

The strengthened biodiversity duty requires all public authorities to undertake a thorough consideration of what they can do to enhance biodiversity at least every five years, and then take that action. They must have regard to relevant Local Nature Recovery Strategies, and relevant Species Conservation and Protected Sites Strategies - all of which will provide them with the information, data and tools to identify the most beneficial action within a particular region.

By making biodiversity a condition of planning permission, we are ensuring it is a priority for developers and planning authorities. Conservation covenants could then be used to secure the benefits delivered by other measures for the long term.

Finally, going beyond the measures in the nature parts, the Bill will also introduce targets for four measures: air quality, water, resources and waste, and biodiversity. Targets will be based on robust, scientifically credible evidence, as well as economic analysis. They will include clearly defined and objectively measurable standards with a date for achievement.

We know that halting the decline in species abundance by 2030 will not be an easy task, given the significant declines in nature in recent decades. However, through the Environment Bill we are demonstrating our commitment to delivering that significant ambition. We will review and refine our actions to ensure they support meeting our legally binding targets, reporting on progress through the Environmental Improvement Plan Reports. We will further set out our approach to nature recovery, including potential future legislative measures in the upcoming Nature Recovery Green Paper due later this year.

What is the impact of measures in the nature and biodiversity part of the Bill on business?

As set out in the biodiversity net gain and Local Nature Recovery Strategy Regulatory Impact Assessment, there are impacts on industries within the development sector and those which interface with it. A mandatory biodiversity net gain policy will generate demand for habitats to be created by third parties, such as habitat banks, to help mitigate the full impact of developments on wildlife.

How will these measures work for Local Authorities?

We will work with local authorities and professional organisations to make sure they have access to the right training, ecological expertise and systems required to deliver the measures in this section. This will include ensuring that local authorities have sufficient ecologists to deliver and implement policies in the Environment Bill. These new duties and reporting requirements are designed to be as streamlined as possible, and will be implemented as such, to minimise additional burdens. The cost of new burdens placed on local authorities through biodiversity net gain and local nature recovery strategies will be fully assessed and funded.

The strengthened biodiversity duty is designed not to oblige local authorities to incur additional costs, but to ask them to consider their existing functions to see how they can be performed in a manner that improves biodiversity.

The Forestry Enforcement measures will not place any additional burdens on local authorities, costs incurred by the Duty to Consult will be provided to local authorities in line with our policy on new burdens.

The duty to cooperate from the Species Conservation and Protected Sites Strategies is not intended to place any additional costs or burdens on local planning authorities. They will not be required to collect any new information, just submit information which they already have.

What impact will these measures have on the government’s housebuilding target?

The government is committed to making its ambition of 300,000 new homes a year by the mid-2020s a reality and is committed to sustainable development. The measures in the nature part of the Bill will encourage, and enable, housing to be delivered in a way that enhances the environment whilst having minimal impact on development viability.

What is the government doing to address tree planting?

We are committed to increasing tree planting across the UK to 30,000 hectares per year. We have created the Nature for Climate Fund to drive up planting rates in England, and published an England Tree Action Plan to set out policy changes to achieve this, aiming to treble tree planting rates in England by the end of this Parliament. Through this we will capture carbon, recover nature, connect people with trees and support a green recovery.

What does the Bill do in relation to a Nature Recovery Network?

This Bill introduces a requirement for new, long-term, legally binding targets, and a locally produced spatial planning framework through Local Nature Recovery Strategies. It incentivises positive land management through mandatory biodiversity net gain and a strengthened biodiversity duty on public authorities. These measures have been designed to work together to establish the Nature Recovery Network.

A strengthened biodiversity duty will support the development of the Nature Recovery Network by encouraging public authorities to take action to restore, conserve and enhance biodiversity. Public authorities will also have regard to the priorities and opportunities in relevant Local Nature Recovery Strategies, which will contribute to the Network. The data collected under the reporting requirement will facilitate assessments of the Network’s progress, and future areas that could be incorporated into the Network.

How does the Environment Bill work with the environmental land management schemes in the Agriculture Act?

We are introducing three schemes that reward the delivery of environmental benefits: the Sustainable Farming Incentive, the Local Nature Recovery scheme and the Landscape Recovery scheme.

These schemes will put farmers, foresters and other land managers more in control of how they use their assets to deliver environmental public goods.

Delivery of the Environmental Land Management schemes will be supported by measures in the Environment Bill, and the Environmental Land Management schemes will be a key delivery mechanism for the 25 Year Environment Plan.

Public goods paid for through the new schemes will be aimed at supporting the delivery of the environmental goals set out in the 25 Year Environment Plan, supporting the environment by helping to deliver the government’s strategic environmental improvement plan. These public goods include:

• clean and plentiful water
• clean air
• thriving plants and wildlife
• reduction in and protection from environmental hazards
• adaptation to and mitigation of climate change
• beauty, heritage and engagement with the environment

The schemes will also help meet the specific targets, for example, on air quality and biodiversity, set through the Environment Bill, which will be in line with the 25 Year Environment Plan.

Tools delivered through the Bill will be used to support future Environmental Land Management Schemes. For example, the Secretary of State has committed in Parliament to the alignment between Local Nature Recovery Strategies and future schemes that reward environmental land management. Officials are now exploring how this will work in practice. Local Nature Recovery Strategies will be developed in conjunction with local stakeholders, including farmers and landowners, to ensure buy-in at all stages of the process. Pilots of Local Nature Recovery Strategies, which concluded in May 2021, investigated join up with future environmental land management schemes, and the results are being analysed.

The Environment Bill also legislates for conservation covenants – allowing landowners to make legally binding agreements to deliver lasting conservation. We are considering whether conservation covenants could be used to secure the benefits delivered under the schemes for the long-term.

Why is the due diligence proposal based on legality?

Globally, almost 50% of recent tropical deforestation is the result of illegal clearance for commercial agriculture and timber plantations. This is much higher in some regions, with over 90% of deforestation being illegal in some of the world’s most important forests.

The government’s measures will create a framework which uses local laws of producer countries as the standard, to recognise the primacy of national and sub-national governments’ decisions in determining the management of their natural resources.

We believe that supporting national and sub-national efforts to increase the sustainability of commodity production is the best way forward, and will support work to build genuine partnerships ahead of the UN Climate Change Conference (COP26).

Which commodities will the due diligence policy cover?

Any commodity associated with wide-scale deforestation is potentially in scope of this law, and will be specified in secondary legislation, ensuring this measure is able to account for changing patterns of deforestation.

We will adopt a phased approach to bringing commodities in scope of the regulation. There is a statutory duty for the Secretary of State to consult before any new forest risk commodities are included in the scope of regulation, and Parliament will have the opportunity to scrutinise proposals for new forest risk commodities.

Timber and timber products are not in scope of these provisions, nor are wastes used as biofuel, as we want to avoid overlapping with existing environmental regimes.

What businesses will be covered by the due diligence policy?

These measures will apply to larger businesses that exceed a turnover threshold, and which use forest risk commodities in their commercial activities in the UK. Different commodities may have different turnover thresholds that businesses must exceed to be in scope.

Businesses that fall in scope, but which don’t use significant quantities of commodities can be exempted. This will ensure that the measures are focused effectively.