EU & UK Biodiversity initiatives - new UK Defra consultation on “biodiversity net gain” and key dates for 2022

Various initiatives are taking place in the EU and at Member State and UK level which are aimed at ensuring the recovery of, and greater protection going forwards for the region's biodiversity. Biodiversity in this context relates to ecosystems and the natural habitats and the species which they comprise. This short blog provides a high-level overview of some of these initiatives.

The European Commission published its EU Biodiversity Strategy for 2030 in May 2020. This forms part of the wider EU Green Deal. The ambition of the Strategy is that by 2030 Europe's biodiversity will be on the "path to recovery". This will be achieved through various initiatives, including:

1. A plan to improve and widen the network of protected areas, which seeks to protect at least 30% of the EU's land area;
2. An initiative to implement a new EU Nature Restoration Plan to improve the health of existing and new protected areas;
3. the development of Urban Greening Plans for cities with at least 20,000 inhabitants; and
4. Initiative on sustainable corporate governance and supply chain due diligence obligations.

The UK is no longer part of the EU, and so the EU Biodiversity Plan for 2030 will not apply to it. However, under the UK Environment Act 2021 new legislative requirements in the UK will begin to impact the planning system from approximately November 2023, which will require "biodiversity net gains" to be a condition to the grant of planning permission for all new developments in England (subject to some exemptions).

The requirements for biodiversity net gain will apply to:

• All non-exempted (see below re exemptions) developments requiring planning permission under the Town and Country Planning Act 1990 (discussed in further detail below).
• Nationally significant infrastructure projects (NSIPs) consented under the Planning Act 2008 in respect of larger infrastructure developments such as power plants and airports.

Biodiversity net gain is, in summary, an approach to development which means that habitats for wildlife must be left in a measurably better state that they were before the development started. This will require developers to demonstrate biodiversity gains prior to the commencement of any works.

Further details will be provided in future supplemental regulations as well as associated guidance. We do not yet have a precise date for publication of the supplemental regulations and guidance, however we would estimate this will be by mid-2022.

Next steps/key dates

EU

The following next anticipated steps are of note:

• The Impact Assessment and legislative proposal for the EU Nature Restoration Plan is due to be published on 23 March 2022. The Commission will also publish in 2022 an EU wide methodology to map, assess and achieve good condition of ecosystems, and to identify their exposure and vulnerability to climate change.
• The Commission will, in 2022, also publish guidance to assist EU Member States to integrate healthy ecosystems, green infrastructure and nature based solutions into urban planning, and to access available funding streams for the development and implementation of Urban Greening Plans.
• The Commission's proposal for a directive on sustainable corporate governance is also expected in 2022. The European Parliament published a proposal for a directive, which we understand is being considered by the Commission.

UK

On 11 January 2022, Defra published a consultation (link here) on the new requirements, to seek views in order to shape this secondary legislation and guidance. The consultation will close on 5 April 2022.

It is expected that draft regulations will be published around mid-2022 and after the current consultation, and come into force by November 2023 for developments under the TCPA and no later than 2025 for NSIPs.