Part 6 of the Environment Act, relating to nature and biodiversity, has yet to be implemented, however some clues have been revealed within the published consultation for the Government’s Levelling-up and Regeneration bill, which is making its way through the legislative process currently.
Part 6 provides that local authorities have a general duty to conserve and enhance biodiversity, which will likely be achieved through local nature recovery strategies, along with a provision that a biodiversity gain of 10% will be a condition of future planning permissions save for certain exceptions.
Part 6 also provides controls on the felling of trees, which includes the duty to consult on local highway authorities before they fell any street trees in an urban area.
The consultation with the Levelling-up and Regeneration bill has confirmed that the biodiversity targets will come into force from November 2023. It seems likely that the entirety of Part 6 will come into force at the same time, though this is to be confirmed by the Secretary of State.
However, in order to hit this implementation date of November 2023, the Government still needs to release a significant amount of information as to how these regulations will work in practice. As an example, the precise processes involved as part of the local authorities’ duty to consult has yet to be released by the Secretary of State, as promised within the explanatory notes of the Environment Act.
Furthermore, there are many people within the construction industry (amongst others), who have stated that the biodiversity gain requirement will be difficult, if not impossible, to achieve. It seems likely that the cost of building work will increase in order to achieve a net gain. Conversely, there is concern from campaigners that property developers will clear sites before issuing a planning permission application, thus lowering the bar for achieving a net gain. The Government state they are concerned about this prospect and may further legislate in this regard.
This will be especially difficult where it involves the removal of trees containing tree preservation orders and the associated planning applications. It will be immensely difficult to achieve a 10% net gain in these circumstances and practitioners will need to be aware of this effect.
The requirement for local authorities to implement a “Local Nature Recovery Strategy” will also have a significant effect as part of the overarching biodiversity regulation. A local authority will have to map out important habitats and areas for nature recovery. The local authority will therefore reflect on these areas within the planning process and consider any applications in much more depth.
There is much more information to be revealed over the coming months in respect of the implementation of these regulations, and we all wait with interest as to their practical applications.
However, from the information currently available it is clear that these provisions are likely to have a significant effect across the insurance industry, but not least in claims involving subsidence.
These provisions are likely to significantly affect how local authorities handle requests to remove trees in the future. There is certainly going to be more scrutiny by local authorities of which trees can be removed and which ones may need to remain in situ to comply with biodiversity regulations. It is likely that insurers, and their suppliers, will need to bolster evidence in order to achieve the removal of trees.
As these regulations come into force, Keoghs will continue to monitor their implementation and provide further commentary as to their effect.
If you have any questions, or would like more information, please contact, Matthew Kirk, Associate, Property Risks & Coverage on firstname.lastname@example.org
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