The Environment Bill finally received Royal Assent on the 9th November. The Government’s flagship environmental legislation has had a long gestation, being first announced in October 2019 and presented before Parliament back in January 2020.
The Act, which mostly just covers England, is wide-ranging. Some of the most important areas for agriculture are;
- Targets: the Act sets out long-term, legally-enforceable, targets for the improvement of air quality, water, and waste reduction. Binding targets on biodiversity improvement were added during the legislative process. These targets must be of at least 15 years in duration, and be proposed by late 2022. There is no requirement to set interim targets. The air quality measures will impact on farming through a focus on ammonia emissions from intensive livestock. The water quality is likely to touch on many areas of agriculture. Waste reduction could see a charge for single-use plastics introduced, including farm use. There are no binding targets specifically on soils, which many believe to be a large omission. Defra is working on a separate ‘Soil Health Action Plan’, but this will have no legal basis.
- Environmental Improvement Plans: these will effectively be the delivery plans for the long-term targets set under the Act. They will build on the current 25-Year Environment Plan which is seen as the first EIP.
- Environmental Principles: there are five principles of environmental management set out in the Act, including the polluter pays and precautionary principle. It remains to be seen whether this will have an effect on farming. For example, a very strict reading of the polluter pays principle could see growers responsible for the costs of any diffuse pollution from fertilisers or agro-chemicals.
- Office of Environmental Protection: the OEP will be established to hold public authorities (including Government ministers) to account for applying the environmental principles and complying with environmental law. The OEP has in fact already been running on an interim statutory footing and under early use of powers under the Act has now been put on a statutory footing (as from 17th November).Whilst some environmental groups feel the way the OEP has been set up is not independent enough of Government, there is a fear, including in farming, that it will become ‘captured’ by environmental interests and not weigh other factors such as economic development in its decisions.
- Local Nature Recovery Strategies: these will be a set of spatial strategies covering the whole of England. The relevant authorities (probably Local Authorities) will map existing habitats and set out a plan for improvements. It will be similar to Local Plans under the Planning regime and may have implications for what landowners can do with their land.
- Biodiversity Net Gain (BNG): the Act requires developers of land to generate 10% BNG – i.e. there must be more biodiversity on the site once the development has finished than before it commenced. This will drive the development of a Biodiversity Credit market where landowners create biodiversity offsets in situations where developers cannot create extra biodiversity on site.
- Conservation Covenants: the Act will create a new legal instrument. At present covenants on land that pass from one owner to the next can only be restrictive (i.e. you cannot do something). There is no way to tie future owners into positive management (i.e. you must do something). This is seen as vital in securing the long-term management of land for things such as BNG – which require management for 30 years. An amendment to the legislation means that Conservation Covenants will now need to be executed as deeds (i.e. by a solicitor).
- Water Use: reform of the water abstraction regime is covered by the Act (a consultation on abstraction reform was launched in September).
It can be seen that the Act is likely to have a long-term impact on farming for many years. However, the effects will not be immediate. In most cases the Act simply sets the legal framework, with detailed provisions needing to be introduced through secondary legislation. For example, it is not thought the Biodiversity Net Gain requirement will be fully enacted for another two years. We will keep you up-to-date as elements of the Act are introduced.