Birketts' team of experts step back and explain some of the key terms which are frequently used in relation to clean energy and environmental protection.

The question of how to look after the natural world has been on the public conscience for some time. When the Environment Act 2021 received Royal Assent on 9 November 2021, it established a legal framework for protecting and improving our environment. It would help the United Kingdom to achieve its ambitious aim of being net zero carbon by 2050 and halt the decline in wildlife by 2030. Events around the world since then have continued to keep environmental matters high on the political and business agenda, as well as in everyday life, but recent turmoil at Westminster as caused some concern about whether the Government remains committed to those goals. The Government has recently had the blow of a High Court ruling confirming that their Net Zero Strategy to achieve net zero by 2050 is unlawful because their proposed strategy will not achieve net zero by 2050. The Government now have eight months to produce detailed climate policies to show how they will achieve net zero carbon by 2050. We will all watch with keen interest.

Here we work through some of the key terms in this changing landscape and what they mean.

Biodiversity Net Gain

The term biodiversity refers to all living organisms (from animals to insects and plants to bacteria and fungi). Biodiversity Net Gain is an approach to the planning process that would ensure that there is a gain in biodiversity once a development is complete compared to the position before it began

The requirement for biodiversity net gain is in Part 6 of the Environment Act 2021 and is due to come into force in 2023, as matters stand, though there were suggestions under Liz Truss that the Government might push back on these requirements. The provisions seek to balance the desire to protect and enhance biodiversity against the ongoing need for development by ensuring that any planning permission granted contains a condition requiring a Biodiversity Net Gain of 10% . This can be provided either within the proposed development site, off site or by purchasing biodiversity credits from the Government. Any biodiversity enhancement projects relied on must be secured for 30 years after completion of the development.

It can be secured by conditions, s 106 Agreements or through conservation covenants. It is our view at Birketts, that in spite of the recent Governmental hesitation, Biodiversity Net Gain is here to stay, even if thresholds or levels of gain are amended. Those intending to carry out development will need to take account at an early stage of the need for Biodiversity Net Gain. Deborah Sharples in our Planning and Environment Team is ready to talk through the requirements with you and options for complying.

The need for "off-site" biodiversity, presents an opportunity for landowners. We are acting for various clients, some of whom have projects to provide Biodiversity Net Gain on their land themselves or in collaboration with neighbours with a view to selling credits. Others are entering into arrangements (ordinarily by way of lease) with third parties, including developers or habitat banking operators, to offer biodiversity away from development sites.

Sophia Key and Esther Round in our Agriculture & Estates Team are experienced in acting for clients in this area and can assist should you receive such an approach or wish to diversify in this way.

Carbon Offsetting

A large part of achieving net zero carbon will be to reduce the amount of carbon released into the atmosphere through moves to greener processes (for example, increased use of clean energy) and improvements in technology. However, it is recognised that carbon cannot be entirely eliminated, which is why carbon offsetting is on the agenda.

As the name suggests, carbon offsetting is where carbon released by one process is offset by schemes that reduced emissions in another process or remove carbon from the atmosphere (known as carbon sequestration). The most common examples of the latter are planting trees to establish woodland and the creation or restoration of peatland.

There is already an emerging market in the transfer of "carbon credits" where large carbon emitters are paying to benefit from registered carbon offsetting schemes. This is an area that we expect to continue to grow in the coming years.

Conservation Covenants

The Environment Act 2021 introduces conservation covenants, which came into force on 30 September 2022. In essence these are legally binding agreements between a landowner or tenant and a "responsible body" (such as a conservation organisation or public body) to do, not to do, or allow a responsible body to do something on their land for the purposes of conservation or for the public good.

It is envisioned that conservation covenants will be particularly effective in delivering Biodiversity Net Gain or carbon offsetting, but they will have other uses in conservation not only of the natural environment but of heritage assets too. Once entered into, a conservation covenant will be registered as a land charge and will be enforceable against current and future owners of the relevant interest in the land by the responsible body.

As they are likely to endure for many years and have significant effects on the management of land the terms of any conservation covenant will need to be carefully considered to ensure that it strikes the right balance between benefits and burdens, whilst achieving the stated conservation aim.

If you have any queries regarding conservation covenants, be you a developer or landowner, please contact our expert team lead by Deborah Sharples.

Renewable Energy and Clean Energy

The benefits to the environment of generating power from renewable sources have been apparent for many years. As technology improves and the need for alternative energy sources becomes more acute, the benefits of these energy sources will only become more pronounced.

The terms "renewable" and "clean" energy are often used interchangeably, whereas they actually have slightly different meanings. Clean energy refers to energy generated by a process that does not release greenhouse gasses into the atmosphere, whereas renewable energy is energy generated from a renewable source. There is, of course, significant overlap and the most common examples like wind and solar are both clean and renewable.

Whilst the positioning of solar panels on agricultural land has attracted its critics, the benefit of clean and renewable energy projects in the drive to achieve net zero carbon suggests that these types of schemes are only going to increase in the short to medium term. This will create unique opportunities for landowners to diversify their business.

Whether you are considering a small-scale scheme to generate electricity for personal use or have been approached by developers of larger schemes that will generate electricity to serve the wider grid, Birketts' Clean Energy Team has a wealth of experience in all of these matters. Please contact Jeremy Stanton for further information.

Nutrient Neutrality

One of the major environmental issues surrounding UK waterways is the presence of nutrients (particularly nitrates and phosphorus) in freshwater habitats and estuaries.

Nitrates enter the waterways in many ways and one significant cause is development of land, both due to the increased wastewater and sewerage from newly built houses, and also the natural runoff from building sites.

Nutrient Neutrality is a target set for developers to tackle his problem. It means that developers must be able to show that at the end of a development there will be no more of a specified nutrient entering a catchment than before it began. This places a significant burden on developers and they are likely to be looking to landowners and farmer s to assist them with providing nature based solutions such as wetlands, or agreeing to reduce nutrient rich inputs to farmland by way of mitigation.

There requirements were extended into our region in March 2022 when Natural England issues a letter to 32 local planning authorities including in Norfolk notifying them of catchments which were in an adverse condition and where Nutrient Neutrality must be applied. Development was brought to a virtual standstill over night. While planning authorities are still grappling with the issues raised by this guidance, the Government when under Liz Truss, had recently suggested that this is another requirement which it intends to reduce so as to assist growth. That will be earlier said than done, though as Nutrient Neutrality has its roots in retained EU law and the Habitats Regulations. Unravelling that will be difficult and very controversial. It seems to us that it would be wise to assume that it will continue to be a requirement until there is any certainty that it is not.

Deborah Sharples in our Planning & Environmental Team is at the forefront of advising clients on the impacts and can advise on the solutions being considered.

Birketts has expert knowledge and experience across all the matters outlined above. Its sector specialist lawyers are adept at guiding clients through the complexities of planning and environmental law, providing practical and solution focused advice.

Originally published 14 October, 2022

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.