Environment | UK Regulatory Outlook September 2024

Nature Restoration: Regulation implemented in the EU

Regulation (EU) 2024/1991 entered into force on 18 August 2024. The first of its kind, this regulation explicitly targets the restoration of the EU's nature, with the hope that it will ease climate change and the results of any natural disasters. Specifically, the regulation sets the following legally binding targets for Member States to comply with:

• to restore at least 20% of the EU's land and sea areas by 2030;
• to restore all ecosystems by 2050;
• to prioritise "Natura 2000" sites until 2030; and
• for habitats deemed to be in "poor condition", take restorative measures of at least 30% by 2030, at least 60% by 2040, and at least 90% by 2050.

Particularly important for those businesses with operations directly or indirectly (through supply chains or group companies) in the EU, the success of this regulation is due to be evaluated by 31 December 2033, to assess its effect on different sectors and its wider socio-economic influence.

Further guidance on the Biodiversity Net Gain scheme

Since the Biodiversity Net Gain (BNG) provisions became mandatory on 12 February 2024 further guidance on this approach to development has emerged:

Planning Inspectorate published guidance on appealing a refused or failed BNG plan

If a Local Planning Authority (LPA) refuses or fails to determine a BNG plan, there is new guidance on appealing the decision:

• Who can appeal? Only the person who submitted the BNG plan to the LPA.
• When? Within six months from either the LPA's decision to refuse the BNG plan; or if the LPA has failed to determine the plan, the date that the LPA should have done so.
• Where? Through the Appeals Casework Portal.
• What? There is further guidance on how to complete the appeal form here.

Planning Advisory Service commissioned model templates to facilitate securing BNG

On 5 July 2024, the Planning Advisory Service (PAS) published four templates to assist legal teams securing BNG via agreement:

• BNG Condition: Securing BNG on-site via a condition;
• S106: Habitat Bank: Securing BNG as part of a wider habitat bank;
• S106: On-Site: Includes monitoring contributions and secures on-site BNG by condition; and
• S106: Off-Site: Includes monitoring contributions and a habitat management and monitoring plan for off-site elements.

These templates and their drafting notes should increase efficiency and clarity when drafting agreements, ensuring that the planning expectations are met.

Guidance on how to amend a registration or allocation, or remove a registration

Natural England has published guidance on how to amend or remove a registration on the biodiversity gain sites register, or amend an allocation of off-site biodiversity gains to a development. This guidance gives details on:

• who can amend registrations or allocations;
• reasons/conditions for making such amendments or allocations;
• information required to be provided;
• documents to be sent alongside registrations;
• how long the process takes; and
• the cost of amending registration or allocations.

BNG requirements do not apply retrospectively to planning applications

In August, a recent High Court judgment (R (Weston Homes Plc) v Secretary of State for Levelling Up, Housing and Communities and another (2024)) held that BNG requirements do not apply retrospectively.

This decision followed a developer challenging the Planning Inspector's decision to refuse its application for planning permission based on its failure to comply with the BNG requirements. It was held that, in refusing the planning permission, the inspector gave BNG requirements retrospective effect contrary to regulations 2 and 3 of the Environment Act 2021 (Commencement No 8 and Transitional Provisions) Regulations 2024.

This decision serves as a reminder that BNG requirements should not be determinative in planning applications entered before 12 February 2024, when the BNG requirements came into force.

Temporary flexibility on new Sustainability Disclosure Requirement rules

Please see ESG.

FAQs on the Corporate Sustainability Reporting Directive

Please see ESG.

Government's Cumbrian coal mine plan blocked on climate grounds

The High Court has ruled that, following the Surrey oil decision earlier in the year, R (Finch) v Surrey County Council And Others [2024], the new Whitehaven coal mine cannot go ahead because the government had failed to consider the full climate implications of the project. Specifically, the government failed to consider the project's emissions impact.

This decision is likely to have future ramifications for fossil fuel projects, making it difficult to see how they will go ahead in years to come. The Labour government has said that it will not contest this ruling, potentially highlighting its commitment to clean energy.

First reading of the Water (Special Measures) Bill

Following on from its introduction in the King's Speech in July, the Water (Special Measures) Bill 2024 had its first reading in the House of Lords on 4 September 2024. The bill strengthens the powers of the water regulator and environment regulators, including enabling Ofwat to make rules about pay and governance in the water industry, requiring sewage undertakers in England to produce annual pollution incident deduction plans and requiring water companies to publish near real-time data on discharges from emergency overflows.

It is due to have its second reading on 9 October 2024.

Welsh government responded to its consultation on proposals for Environmental Governance and Biodiversity Bill

On 2 August 2024, the Welsh government published its response to its Environmental Bill that was published on 30 January 2024. The response established what will be covered by the bill:

• It will place environmental principles into Welsh law. Particularly, these principles will focus on ensuring a high level of environmental protection and contribute to sustainable development.
• It will establish environmental governance in Welsh law. This will involve an independent body enforcing the environmental law against public bodies.
• It will set biodiversity targets and duties in Wales. This includes reversing nature decline by 2030 and actioning a nature positive purpose.

Lithium-ion Battery Safety Bill

This Private Members' Bill had its second reading on 6 September 2024 and intends to assist the safe storage, use and disposal of lithium-ion batteries; and for connected purposes. It is currently in the Committee stage and waiting approval.

Climate Change (Emissions Reduction Targets) (Scotland) Bill

On 5 September 2024, the Scottish government introduced the Climate Change (Emissions Reduction Targets) (Scotland) Bill, which seeks to amend the Climate Change (Scotland) Act 2009.

This was in response to the Climate Change Committee's advice that Scotland's 2030 emissions targets were beyond reach. Thus, this bill aims to set a more reliable framework for Scotland's emissions reduction targets. Businesses should be aware that this new legislation could lead to further regulatory obligations in Scotland and they should stay informed about any developments.