UK environmental law in 2023 – What to expect

It's now over a year since the Environment Act 2021 received Royal Assent. What progress has been made, and what should we be on the watch for in 2023?

Our Real Estate Development Yule Blog takes a look at three areas of interest:

• mandatory biodiversity net gain;
• environmental deadlines; and
• the future of retained EU law.

Mandatory biodiversity net gain

Here we consider the mandatory biodiversity net gain requirement for town and country planning development which is due to come into effect in November 2023. Various provisions in Part 6 of the EA 2021 are yet to be brought into force, including necessary changes to the Town and Country Planning Act 1990 and powers for the Secretary of State to introduce the biodiversity gain site register and biodiversity credits. We're also expecting the government’s response to Defra’s January 2022 consultation on biodiversity net gain regulations and publication of secondary legislation and guidance needed to implement the new system. Further stakeholder engagement and publication of the statutory version of the biodiversity metric should be in the pipeline, and we've recently been told that we can expect guidance in early 2023 on how to become a "responsible body" for the purposes of conservation covenants.

As for Nationally Significant Infrastructure Projects, this regime isn't due to come into effect until 2025, but we're expecting a further consultation on biodiversity gain statements.

Environmental deadlines

Here we look at the statutory environmental deadlines which Defra missed in 2022, in particular the delayed environmental targets. As we discuss in our latest article, Defra has now published the targets - unfortunately more of a whimper than a bang.

What next? Hopefully we'll soon see publication both of statutory instruments to formally set the targets and of the new Environmental Improvement Plan. Defra has until 31 January 2023 to publish the latter, which should include interim targets signposting how the long-term targets will be met.

The future of retained EU law

Finally, here we take a look at the EU Retained Law (Revocation and Reform) Bill currently making its way through Parliament.

Commonly referred to as the Brexit Freedoms Bill, if enacted in its current form this Bill will amend, repeal or replace the estimated 3,800 pieces of EU-derived legislation kept on the UK statute book post-Brexit (known as retained EU law). The impact on environmental legislation could be enormous. Concerns raised by the UK Environmental Law Association (UKELA) and many others include: the proposed sunset date of 31 December 2023; the lack of a definitive list of retained EU law; the lack of any duty on the government to review, save or replace relevant legislation; the lack of transitional arrangements; the impact on legal certainty; and, importantly, the potential to water down or side-step existing environmental protections.

All eyes will be on the Bill as it continues its passage through Parliament in 2023.