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the environment (Wales) act 2016

5 April 2016

On 2 February 2016 the Environment (Wales) Bill was approved by the National Assembly for Wales. Barring any legal challenge it will receive Royal Assent in spring 2016 and then become an Act of the Assembly (the Act).

The Act is stated to have a number of purposes, including the promotion of the sustainable management of natural resources. The majority of the provisions of the Act apply to the Natural Resources Body for Wales and the Welsh Ministers. However Section 6 places a specific duty on public authorities to "seek to maintain and enhance biodiversity in the exercise of their functions in relation to Wales".

This article will consider the requirements of Section 6 of the Act in the context of existing biodiversity obligations and the effect in practice that this is likely to have on a Welsh local authority.

The biodiversity duty

Biodiversity is defined in the Act as meaning the diversity of living organisms, whether at the genetic, species or ecosystem level.

Section 6 of the Act contains the Biodiversity Duty. Section 6(1) of the Act states that:

"(1) A public authority must seek to maintain and enhance biodiversity in the exercise of functions in relation to Wales, and in so doing promote the resilience of ecosystems, so far as consistent with the proper exercise of those functions."

Section 6(2) of the Act states that:

"(2) In complying with subsection (1), a public authority must take account of the resilience of ecosystems, in particular the following aspects -
(a) diversity between and within ecosystems
(b) the connections between and within ecosystems
(c) the scale of ecosystems
(d) the condition of ecosystems (including their structure and functioning)
(e) the adaptability of ecosystems."

Accordingly once the Act is in force local authorities in Wales will be under a duty to enhance biodiversity when exercising their functions, so far as is consistent with the proper exercise of their functions. Whilst local authorities have been required to have regard to the conservation of biodiversity for a number of years (see below), the Act places a positive duty on local authorities to enhance biodiversity. It also for the first time places a specific requirement on local authorities in Wales to consider certain characteristics of ecosystems, such as their scale and connections between them.

Current biodiversity duties of local authorities

Local authorities have for a number of years had responsibilities in relation to biodiversity. For example:

  • Section 40(1) of the Natural Environment and Rural Communities Act 2006 (NERC) states that every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity
  • Regulation 9 of the Conservation of Habitats and Species Regulations 2010 sets out that local authorities must have regard to the Habitats and Birds Directives so far as they may be affected by the exercise of the local authority’s functions
  • Section 28G of the Wildlife and Countryside Act 1981 requires local authorities to consider the effect on the flora, fauna or geological or physiographical features of a Site of Special Scientific Interest
  • local authorities are also encouraged through planning guidance to enhance as well as conserve biodiversity (for example see the Welsh Government’s technical advice note 5 on nature conservation and planning).

However the Biodiversity Duty is significant because it is a positive duty to enhance biodiversity outside of the planning regime which potentially applies to all of the functions of a local authority.

The Well-being of Future Generations (Wales) Act 2015

The Well-being of Future Generations (Wales) Act 2015 (the Well-being Act) states that local authorities in Wales need to carry out sustainable development. This will include setting and publishing objectives that are designed to maximise their contribution to achieving each of the well-being goals. Local authorities are responsible for taking all reasonable steps in exercising their functions to meet their objectives.

The well-being goals include enhancing a bio diverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change. The Well-being Act is due to come into force in April 2016. Due to the complementary nature of the Well-being Act and the Biodiversity Duty, it is likely that the Biodiversity Duty and Well-being Act will come into force at approximately the same time.

The practical effects for local authorities

As discussed above, conserving biodiversity is something which local authorities in Wales are experienced in having regard to when exercising their functions. In particular they have had a duty to have regard to sustainable development, and accordingly consider conserving and enhancing biodiversity, in relation to planning applications. However the Welsh Government believes that whilst there has been some success as a result of the current duties, these successes have not been sufficiently widespread.

The Biodiversity Duty is more prescriptive than previous obligations in that it requires local authorities when exercising functions to demonstrate that they have considered the resilience of ecosystems, including:

  • diversity between and within ecosystems
  • the connections between and within ecosystems
  • the scale of ecosystems
  • the condition of ecosystems (including their structure and functioning)
  • the adaptability of ecosystems.

Obtaining information

In order to comply with the Biodiversity Duty local authorities should consider how they are going to obtain the necessary information. Local authorities may have existing mechanisms in place for obtaining biodiversity information in order for them to comply with their existing duties. However the more prescriptive nature of the Biodiversity Duty means that additional information is likely to be required.

In relation to the determination of planning applications local authorities may wish to request this additional information from the applicant. Thought will need to be given to how much information is appropriate for different applications. For example it is likely that more detailed analysis is required in order to discharge the Biodiversity Duty for larger developments or in developments near or in more environmentally sensitive areas. Local authorities should consider how they are going to communicate their requirements for additional ecological information to applicants. For example are relevant policies going to be amended?

Local authorities will need to be able to review any information obtained from the applicant with the assistance of ecological advice. They will also need their own ecological advice when exercising other, non-planning, functions.

Whilst the larger authorities may employ an ecologist, it is likely that the majority of local authorities will need to buy in services. Accordingly local authorities may wish to explore possibilities on the most cost effective way of managing an increased need for advice from ecologists. This may include working with other local authorities to share access to an ecologist, or arranging a competitive tender for services.

Action needed to comply with the Biodiversity Duty

Commentary on the Biodiversity Duty from the Welsh Government suggests that local authorities could consider:

  • letting grass grow longer at certain times of the year and in certain places, before cutting it, to provide a more varied structure, encourage wild flowers and enhance wildlife habitats
  • allowing some weedy areas to provide food for birds and animals
  • provision of nesting sites and bat boxes
  • using native tree and plant species.

These kinds of measures could be contained within planning permission, or included by local authority departments responsible for parks and open spaces. However there is greater uncertainty as to the action required in relation to the exercise of other functions. For example how do you seek to maintain and enhance biodiversity in relation to the provision of social care or the collection of household waste?

The Biodiversity Duty is clarified by the words ‘so far as is consistent with the proper exercise of those functions’. It may therefore be arguable that the Biodiversity Duty does not require action to maintain or enhance biodiversity to be taken in relation to the exercise of a number of local authority functions, but a local authority would need to show evidence that is has considered whether this is the case

Local authorities should consider how they have complied with their current biodiversity duties, in particular under NERC. The wording in NERC is similar to the Biodiversity Duty and should assist in its implementation. However the Assembly clearly intends the Biodiversity Duty to have a wider impact than NERC. Therefore until guidance is published, or the courts consider the implementation of the Biodiversity Duty there remains uncertainty on what local authorities are required to do to comply with the Biodiversity Duty. It is likely that the Welsh Government will publish guidance on how they expect the Biodiversity Duty to be implemented. This should hopefully help to provide clarity on the responsibilities of local authorities.

Even if it is determined that actions to maintain or enhance biodiversity are not required as they are not consistent with the proper exercise of the functions of local authorities, local authorities will still need to demonstrate that they have considered the specific aspects set out in section 6(2) of the Act. This will require input from an ecologist. It is important that the views of the local authority in relation to each of the aspects is recorded to assist in the event of challenge.

Local authorities should consider whether any of their policies need updating to refer to the Biodiversity Duty. Additional training may also need to be given to officers.

Use of the Biodiversity Duty as a basis for challenge

It is likely that the Biodiversity Duty will primarily make itself felt in relation to planning matters. However the scope of the duty has deliberately been made wide and it may be used by those who are unhappy with decisions of a local authority to challenge decisions in areas other than planning. For example, if a person is dissatisfied with a decision a local authority has made in relation to the closure of social care facilities they may seek to demonstrate that the local authority has not followed due process and considered the Biodiversity Duty. Whilst it is unlikely that a challenge based on the Biodiversity Duty will prevent a decision, such as the close of social care facilities, being made, it could be used as a delaying tactic.

In order to reduce the risk of successful challenge a local authority will need to demonstrate that it has complied with its Biodiversity Duty. If there are not realistic options for maintaining and enhancing the biodiversity in a manner consistent with the proper exercise of that particular function then this will need to be recorded, as will the reasons why this is the case.

Conclusion

It is encouraging that efforts are being made to improve biodiversity within Wales. It is also positive that this appears to be part of a wider legislative programme. However a number of uncertainties remain which need to be addressed prior to the Biodiversity Duty being commenced so that local authorities fully understand the extent of their responsibilities. Only if local authorities fully understand their responsibilities can the aim of the Biodiversity Duty be achieved without creating an unnecessary burden.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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