Brexit may well have taken a backseat to coronavirus in recent months, but on 31 December 2020, the UK will leave the European Union. As government guidelines around environmental legislation post-Brexit are still somewhat cloudy, Stephanie Wray (RSK Biocensus), James Maurici QC (Landmark Chambers) and Alison Ogley (Walker Morris) set out to provide some clarity on the situation, in their recent webinar ‘A green Brexit? Removing red tape or increasing environmental protection?’.
After an introduction from Stephanie Wray, Managing Director of RSK Biocensus, James Maurici QC was first to present, on ‘Brexit and the Environment Bill: An opportunity for the rolling back of EU environmental laws?’. EU legislation has had a constant and significant effect on UK environmental law since 1973, James began. But all that is about to change. Once the implementation period begins on 1 January 2021, we will have to consider the loss of established environmental principles such as ‘the polluter pays’, the government’s new ability to repeal or amend environmental legislation derived from EU environmental legislation and, lastly, the ability of our courts to take a different line to that taken by the CJEU on case law derived from EU environmental law.
Although this will provide opportunities for the UK as we attempt to “reverse the tide of European law”, the UK government is already providing mixed messages for what this will actually mean for UK environmental legislation. Under the earlier Withdrawal Agreement, it was stated that environmental controls post-Brexit would be at least as rigorous as those applicable in the EU and in January 2020, and the Environmental Bill Policy Statement described the Bill as “the most ambitious environmental programme of any county on earth… part of the government response… for a step-change in environmental protection and recovery”. However, the former statement was removed from the final Withdrawal Agreement and by June 2020, the Prime Minister was saying “…time is money, and the newt-counting delays in our system are a massive drag on the productivity and the prosperity of this country and so we will build better and build greener but we will also build faster…”. Clear as mud.
As James concluded that more clarity was needed on the part of the UK government in relation to environmental legislation, Alison Ogley was next to speak on ‘Biodiversity net gain – Current legal issues’. Refreshingly, Alison began, the UK government’s approach to Biodiversity Net Gain is relatively consistent. We already have The Natural Environment and Rural Communities Act 2006, which places a duty on decision-makers to have regard to the purpose of conserving biodiversity. The upcoming Environment Bill proposes to take this further, with a duty to conserve and enhance.
The Government’s 25 Year Environment Plan includes a commitment to create a Nature Recovery Network, which aims to join up habitat across England. This goes back to the fragmentation point, which was first picked up by the Lawton Review back in 2011. When the review first came about, there was quite a lot of excitement surrounding it, but nearly 10 years on and it is slow progress: we have waited this long for any concrete proposals at national level. In terms of the Environment Plan, five pilot studies are underway to identify valuable sites for wildlife and restoration of nature, but it has been local authorities, who have taken it upon themselves to implement change, who have most impressed. Alison cited Warwickshire’s Biodiversity Impact Assessment Tool, Barnsley’s biodiversity policy within their Local Plan (2019) and Plymouth and South West Devon’s Joint Local Plan (2019) as examples. However, many local authorities will not have the time, expertise or funding to implement these sorts of plans, Alison concluded.
Last up to speak was Stephanie Wray, who provided the practitioner’s view as to how these changes are likely to affect the environment, from her position as RSK Biocensus Managing Director. The current situation, Stephanie began, is akin to standing at a cliff edge – there is just no certainty in place as to the new regime and how we will be operating. This, she said, is not just bad for the environment, but also for the economy. Stephanie considered all the elements of the Greener UK Risk Tracker, which has been tracking the post-Brexit impacts on the environment. Air pollution, chemicals, water, waste and resources, fisheries, climate, farming and land use and nature protection are all currently considered high risk, but with varying levels of progression.
However, Stephanie concluded, it is not all doom and gloom. For example, the forthcoming Environment Bill will mandate Biodiversity Net Gain (BNG) of 10% for developments under TCPA in England. “This will give us some clarity on what needs to be delivered and it will give us the opportunity to complete some works off-site,” Stephanie said. “It can be a benefit to the developer to deliver net gain offsite as it often involves cheaper land, but also can benefit the natural environment because we can aggregate all the small contributions from different developments together and contribute to strategic rewilding projects, to the nature recovery network and see added natural capital benefits like natural flood management or carbon management.”
Weighing up the positives and negatives of the current situation, Stephanie concluded, “All-in-all we have an opportunity to rethink the economic system as though the environment matters”.
About the speakers:
Stephanie Wray: Stephanie is the Managing Director of RSK Biocensus, RSK Group’s leading ecological consultancy. RSK Biocensus works on a wide range of projects with a focus on large infrastructure developments and delivers ecological services to the business community at the strategic and project levels. It can also provide guidance and support on the development of biodiversity footprinting at the corporate strategic level and project-specific work such as surveys, ecological impact assessments, protected species surveys, mitigation measures and monitoring.
James Maurici QC: James is a barrister with Landmark Chambers, having been called to the Bar of England and Wales in 1996. He was appointed Queen’s Counsel in 2013. He practices in planning; environmental law; and public law. His practice regularly encompasses EU and international law. He was called to the Bar of Northern Ireland in 2009 and practises in that jurisdiction also.
Alison Ogley: Alison is a partner at Walker Morris and as an experienced advocate provides combined advocacy and litigation services in High Court cases, in addition to her established Public Inquiry practice. With over ten years’ experience Alison specialises in advising clients in all areas of planning and environment law and has acted on a variety of major development projects including housing, minerals, waste, retail and renewable energy.