Extended biodiversity duty for public authorities now in force – what does it mean?

The new extended biodiversity duty for public authorities (i.e. public bodies such as local authorities and government departments, ministers, water companies and other statutory undertakers) came into force on 1 January 2023 having sat dormant for just over a year before commencement.

An amendment to the original Natural Environment and Rural Communities Act 2006 (NERC Act) section 40 duty, provided for in the Environment Act 2021, extends the biodiversity duty on public authorities to include the enhancement of biodiversity alongside conservation by way of creating “the general biodiversity objective”. This is achieved by a revised section 40 of the NERC Act, including new provisions, which are now in force.

Government suggests that the aim of this is to provide for the enhancement and improvement of biodiversity, going beyond the mere maintenance of biodiversity in its current state (see paragraph 923 of the Explanatory Notes to the Environment Act 2021). This fits in with the increasing policy and legal narrative on nature recovery we have seen following the 25 Year Environment Plan and into Environment Act 2021.

The original section 40 NERC Act duty on public authorities to have regard “so far as is consistent with the proper exercise of [the public authority’s] functions, to the purpose of conserving biodiversity” looks rather weak in comparison to the new extended biodiversity duty (as had it done against the Welsh duty to enhance and maintain biodiversity and resilience of ecosystems, under section 6 of the Environment (Wales) Act 2016). Gone is the ‘have regard’ element in respect of conserving biodiversity, having been replaced by a proactive duty (new section 40(1)) to “from time to time consider what action the authority can properly take, consistently with the proper exercise of its functions, to further the general biodiversity objective”.

Moreover, under section 40(1A)(a) public authorities now must take a strategic approach to determine policies and specific objectives for taking action to further the general biodiversity objective. Public authorities must also (under section 40(1A)(b)) take action in light of these policies and objectives to further the general biodiversity objective.

Additional accountability is provided by the imposition on local authorities (but not all public authorities) of a duty to deliver Biodiversity Reports under section 40A of the NERC Act. Here local authorities are required to report on a summary of action taken to comply with its duties under section 40(1) and (1A) of the NERC Act, action taken in respect of the implementation of Biodiversity Net Gain (BNG) if it is a Local Planning Authority, and other data. These Biodiversity Reports will also contribute to invaluable data and evidence on the status of protected sites, priority habitats and priority species.

The next piece of the jigsaw will be the implementation of Local Nature Recovery Strategies (LNRSs) and any species conservation strategy or protected site strategy prepared by Natural England; this is because the extended NERC Act Duty requires (section 40(2A)) public authorities to have regard to each of these. However, these are still to be finalised, with national rollout of LNRSs from April 2023 and further details on species conservation strategies and protected site strategies yet to be announced.

With the implementation of mandatory BNG in November 2023 alongside the use of LNRSs, there is a cause for optimism around the potential for innovation on the part of local authorities and other public bodies working alongside the private sector to deliver some really inspiring sustainable solutions (such as the update on Plymouth City Council Habitat Banking Vehicle that Richard Broadbent recently shared).

This all has the makings of bringing local authorities, developers and communities closer in delivering development which can benefit people and the natural environment.

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If you have any queries on the topics discussed, please get in touch with Penny Simpson and Thomas Roberts.