Section 1 of the landmark Environment Act (EA) 2021 requires the Secretary of State for Environment, Food and Rural Affairs to set long-term environmental targets in respect of four priority areas: air quality; water; biodiversity; and resource efficiency and waste reduction. The date by which these targets should have been set was 31 October 2022. This date was set in law, but the deadline was missed. Unfortunately, this is not the only statutory deadline that Defra has failed to meet – the department has been accused of "a culture of delay" by the Chair of the Environmental Audit Committee.
In today's Real Estate Development Yule Blog, we take a look at the missed deadlines for the four priority environmental targets, and others, and consider what might lie ahead.
Environmental targets
The government didn't confirm that it would miss the 31 October 2022 deadline until 28 October 2022, when it published a Written Ministerial Statement (WMS) blaming the delay on the sheer volume of responses received to its March to June 2022 consultation on the drafts of the four priority targets. The consultation also covered additional targets including biodiversity, water, marine and woodland cover. Defra's intention as at 28 October was that the required draft statutory instruments would be laid "as soon as practicable". We published an article on our UK Environment Act 2021 Latest Thinking Hub which considered the targets and the legal requirements of the EA 2021 – to read the article click here.
According to the WMS, over 180,000 responses were received to the March 2022 consultation. This may reflect the strength of feeling regarding the adequacy of the draft targets as published – as we noted in our article, they came in for much criticism. The consultation itself had to be extended by four weeks due to the government's failure to publish supporting evidence alongside the consultation document. The Office for Environmental Protection (OEP) suggested that clarity was required regarding both the targets and other commitments vital to achieving long-term environmental goals, and gave advice on how the targets could be strengthened and improved.
Environmental Improvement Plan
The OEP Chair, Dame Glenys Stacey, wrote to the then Secretary of State, Ranil Jayawardena, on 6 October 2022 expressing concern about the potential knock-on effect of the delay in setting the environmental targets. She suggested that the government should assess the potential impacts of any delay "and undertake robust planning to get back on track". In particular, the OEP was concerned about potential delay to Defra's publication of the Environmental Improvement Plan (EIP), which is due by 31 January 2023. This concern was re-iterated in Dame Glenys' subsequent letter of 28 October 2022 to the newly appointed Thérèse Coffey.
On 2 December, Trudy Harrison, the Minister for Natural Environment and Land use, responded to the OEP's letter of 28 October, confirming the government's intention to publish the environmental targets by the end of 2022, and also to publish the EIP by the deadline of 31 January 2023. We are waiting to see whether this will be achieved – as is the OEP. They are keeping their enforcement options open, which include the ability to launch an environmental review in the High Court seeking a statement of non-compliance by Defra and potentially an order for it to produce the targets without further delay.
On 12 December 2022, Dame Glenys responded to Trudy Harrison, noting that, owing to the Parliamentary timetable, the target regulations will actually have to be published by 21 December 2022 if the government's 31 December 2022 commitment is to be met. This is now less than one week away.
Other Defra deadlines
The statutory deadlines relating to environmental targets and the EIP are not the only ones about which the OEP has expressed concern. According to the OEP's letter of 28 October, the government has also failed to publish:
- a situation report on the disposal of urban waste water and sludge (due 31 December 2020);
- updated River Basin Management Plans (RBMPs) (due 22 December 2021);
- conclusions of reviews of certain environmental impact assessment (EIA) regimes (due 16 May 2022); and
- the outcome of the National Air Pollution Control Programme (NAPCP) review (due 15 September 2022).
The OEP's letter noted that this list was "non-exhaustive".
Trudy Harrison's reply acknowledged that, with the exception of the report on urban waste water and sludge disposal, these deadlines had indeed been missed. Defra's intention is to publish the updated RBMPs by 22 December 2022 - one year late. No specific date has been promised for publishing the conclusions of the EIAs regimes reviews and the outcome of the NAPCP.
What next?
The government may be able to publish the priority environmental targets before the Parliamentary recess, and could well be on track to deliver the EIP before the end of the calendar year – time will tell. Hopefully, the civil service strikes (which we're told Defra staff supported) will impact neither Defra's ability to publish on time nor the quality of the targets themselves. The OEP has already received a formal complaint about Defra's missed deadlines from a group of bodies including the National Trust and the RSPB, so the pressure on Defra to meet its obligations is clear.
It's not all bad news. Progress is being made on the new Nutrient Mitigation Scheme, which the government hopes will help get residential development off the ground in areas affected by Natural England's nutrient neutrality guidance. Progress is also being made with biodiversity net gain - Natural England is testing a habitat management and monitoring template, the Planning Advisory Service has published new guidance, and Defra has published guidance on conservation covenants which came into force at the end of September (see our article here), although the biodiversity net gain regulations which were consulted on earlier this year are yet to come.
We're told that the OEP will closely monitor both Defra's progress and the quality of their output. They will not be alone.
HSF Real Estate Development Yule Blog 2022
Links to the previous posts in our Yule Blog series are below. Check back tomorrow for day 3!
- 5 housing ministers
- 6 years for silence
- 7 storeys high...
- 8 jolly judgments?
- 9 keys to MEES
- 10 percent more
- 11 metre buildings
- 12 points to ponder
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.