The new extended public authority biodiversity duty

The beginning of this year saw the commencement of section 102 of the Environment Act 2021 which came into force on 1 January 2023 and provides for a new extended biodiversity duty for public authorities.

Section 102 of the Environment Act 2021 (the EA) amends section 40 of the Natural Environment and Rural Communities Act 2006 (the NERCA) to replace the ‘duty to conserve biodiversity’ with a duty ‘to conserve and enhance biodiversity’. The new extended duty requires public authorities to include the enhancement of biodiversity alongside conservation by way of creating ‘the general biodiversity objective’.

The notes published alongside the EA (the Notes) advise that the aim of the new extended duty is to provide for the enhancement and improvement of biodiversity, going beyond the mere maintenance of biodiversity in its current state. Contrasting this with the duty to conserve biodiversity under the original section 40 of the NERCA which provided that public authorities should have regard ‘so far as is consistent with the proper exercise of the public authority’s functions, to the purpose of conserving biodiversity’. The requirement to ‘have regard’ in respect of conserving biodiversity has now been replaced with a proactive duty 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’” (Section 40(1) of the NERCA).

The Notes advise that ‘in order to comply with the revised biodiversity duty, a public authority must periodically consider the opportunities available to improve biodiversity, across the full range of its functions. This represents a proactive, strategic assessment of a public authority’s functions, rather than considering each function in isolation as required by the original section 40 duty.’

Section 40(1A) of the NERCA sets out the process that the public authority must undertake following the strategic assessment but provides scope for the public authority to decide there is no action it can reasonably take that is consistent with the proper exercise of its functions. The example provided by the notes is that it may decide a particular action is not possible within existing budget constraints, not good value for money or conflicts with other priorities.

Where the public authority concludes there is action that it can take it must decide how that action can be put into effect, through appropriate policies and objectives and it must take such action as it considers appropriate, in the light of those policies and objectives, to further that objective.

Section 40(1B) of the NERCA provides that requirements under Section 40(1A) can be satisfied by adjusting existing policies and objectives, rather than requiring public authorities to introduce new policies or undertake new projects.

Subsections 40 (1C) to (1E) establish the frequency with which the public authorities should consider how they can improve biodiversity and then take action. Public authorities must complete the initial assessment within one year of the amended duty coming into force (1 January 2024) and must complete subsequent assessments to determine whether there is action they can reasonably take, and what that action should be, at least every five years.

Decisions around which policies and objectives can be used to further the biodiversity objective should then follow as soon as is practically possible. Section 40(1F) provides that, a public authority is free to carry out a strategic assessment of its policies and specific objectives and to take action for biodiversity at any interval, as long as this consideration takes place frequently enough to satisfy subsections 40(1C) and (1D).

Section 40(2A) requires that public authorities must have regard to any relevant Local Nature Recovery Strategies (LNRSs), Species Conservation Strategies and Protected Site Strategies as part of their strategic assessment of their functions under subsections 40(1) and 1(A) of the NERCA and subsection 40(2B) provides for a requirement for the secretary of state to provide guidance to local planning authorities which will specify how they are to take a local nature recovery strategy into account when discharging their duties under subsections 40(1) and (A1) of the NERCA concerning the conservation and enhancement of biodiversity.

Section 40A to the NERCA provides for the requirement to produce biodiversity reports. Subsection 40A (1) sets out the public authorities to which section 40A applies which includes all local authorities and local planning authorities (excluding parish councils) and public authorities designated by the secretary of state. Subsection 40A(2) requires the public authorities identified in subsection 40A(1) to produce biodiversity reports which should detail the action the public authority has taken under the duty over the reporting period and the actions it will take in the subsequent five-year reporting period. This must be accompanied by quantitative data which is to be stipulated in regulations to be issued by the secretary of state. With regard to the timing and frequency of reporting the report must be published within twelve weeks after the end of the period that it covers.

Section 40A(6) of the NERCA provides that a public authority must publish its first biodiversity report within three years of the date on which the authority first becomes subject to the duty under subsection 40(2), although it is at liberty to decide when to publish within this window. Following the first report, the public authority must publish subsequent reports at least every five years, though again it can choose when to publish within this window.

Finally, subsection 40(8) creates a power for the secretary of state to issue regulations that designate public authorities as required to report and to further define what data must be included in the biodiversity report. The purpose of this is to ensure key quantitative data is reported in a consistent fashion across all reports, thereby making comparisons across the reports easier.

The introduction of the new extended public sector biodiversity duty together with the implementation of the mandatory biodiversity gain and Local Nature Recovery Strategies can be seen as a positive move which should result in initiatives and development which will improve people’s lives and benefit the natural environment. The duty will, however, present new challenges for local authorities who will have to demonstrate that they have taken a strategic approach to determining policies and specific objectives for taking action to further the general biodiversity objective and that they have taken the action identified in these policies and objectives.  

If you have any questions regarding the new extended public sector biodiversity duty and how this affects your organisation, we are happy to assist.  

For more information

Please contact Max Howarth.