13 August 2021

Nature Conservation Law: An Attack From The Environment Secretary?

Freeths LLP


Freeths LLP
This post will be of interest to anyone who is seeking to carry out, or object to, development on land or within territorial seas in England.
UK Environment
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This post will be of interest to anyone who is seeking to carry out, or object to, development on land or within territorial seas in England.

The Environment Secretary, George Eustice, announced in a speech on Tuesday 18 May that the Government is seeking to add into the Environment Bill (which applies to England only) powers to change the Conservation of Habitats and Species Regulations 2017 (as amended) (Habitat Regulations) in order to "refocus" the Habitat Regulations, to "ensure our legislation adequately supports our ambitions for nature." The Habitats Regulations are England's linchpin regulations for the protection of the rarest protected species and habitats.

Despite Eustice stating that the government will take a "cautious approach to reform," this announcement has caused significant unease amongst environmental groups as the drafted amendments may well in fact fail to secure his purported commitment to protect habitats, nature and our environment.  The drafted amendments may also be of concern even to developers and industry who above all favour certainty and clarity in the legal systems with which they have to grapple.

These are our initial thoughts on the matter.

Eustice's speech focuses on two proposed amendments.

The first amendment relates to the "sweep up" provisions of regulation 9 of the Habitats Regulations.  These provisions currently impose duties on all public bodies, in the exercise of their functions, either to "secure" compliance with the Habitats and Birds Directives or to "have regard to" the requirements of those Directives.  The provisions have importance in ensuring that all public bodies act to promote the protection of the rarest species and habitats. The provision is, for example, at the heart of planning authorities' concerns regarding development impacts on the rarest protected species. It also has the effect of ensuring that our rarest protected sites are actively protected on an ongoing basis from damaging activities consented by public bodies through various permitting regimes.

The second amendment relates to the "Habitats Regulations Assessment" (HRA) rules of the Habitats Regulations. These provisions currently protect our rarest designated conservation sites from being harmed by new activities.

In both cases the amendments are very significant.  They amount to creating extremely wide and pretty much unlimited powers of the Secretary of State to make future changes to these provisions (and also any other linked provisions). In the case of the first amendment, the changes are to allow public bodies to move away from achieving the protection envisaged in the Birds and Habitats Directives and instead to work to any new biodiversity priorities which the Secretary of State happens to decide might be appropriate.  In the case of the second amendment, the changes can apply to any aspect at all of the HRA rules.

The amendments seek to placate the green groups by stating that: (i) any changes can only happen where "the Secretary of State is satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations"; (ii) the Secretary of State must "have regard" to the particular importance of furthering the conservation and enhancement of biodiversity; (iii) the Secretary of State must lay before parliament, and publish, a statement explaining why he is satisfied that the regulations do not reduce the level of environmental protection; and (iii) that the Secretary of State must consult anyone that he considers appropriate.

But you do not have to be a lawyer to see that this puts all the decision making power, both in terms of the consultation process and the new regulations' content, in the hands of one person, the Secretary of State.  Since he or she is also the person proposing the regulations in the first place, this cannot realistically be seen as imposing any effective checks or balances on the new regulations which finally emerge.

This is especially so because regulations (which are secondary legislation) are not required to endure the same degree of legislative scrutiny by Parliament as applies with an Act of Parliament and any Parliamentary debate of the future regulations will be minimal or potentially non-existent by comparison.

The justification for these amendments, according to Eustice's speech, appears to be:

  1. To allow Natural England more freedom to exercise independent judgment on matters as the current highly prescriptive legal processes are often distracting;
  2. To support the government's nature ambitions, including their new world leading targets, which together will become the "compass" for the government in the future;
  3. In order to make the new Site Improvement Plans and the Local Nature Recovery Strategies "more prominent" in decision-making;
  4. To ensure a cautious approach to reform, recognising the need for some form of assessment and screening process to continue. Consequently, Lord Benyon has been asked to lead a working group of Tony Juniper, Christopher Katkowski QC and Rebecca Pow to consider changes that might be appropriate, consulting the new Office for Environmental Protection and conservation groups;

In conclusion, the results of these amendments is to leave wide open future changes to the laws that protect our most important nature resources with no or no effective checks and balances.  This will obviously not be welcomed by anyone who cares about our protecting our environment.  Industry and developers have to grapple day in / day out with the current protections afforded by these laws. But at least they know where they stand with them. They are used to the legal issues that arise; there is a process for dealing with them; there is a more or less level playing field across Great Britain; and there have been very useful initiatives (such as great crested newt district level licensing) which serve to ease the "administrative burdens" associated with these rules.  On the face of it, are the burdens experienced by developers and industry really so oppressive as to merit a potential wholescale re-write of our rules and lead to further loss of biodiversity which is needed for the ecosystem services on which we all rely for our survival?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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