Nature Conservation Law: An Attack From The Environment Secretary?

• Published date: 12 July 2021
• Subject Matter: Environment, Environmental Law
• Law Firm: Freeths LLP
• Author: Ms Penny Simpson

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...