Biodiversity Duty under NERC

Natural Environment and Rural Communities Act 2006 (NERC 2006)

Biodiversity: Section 40

A legal duty to have regard to the purpose of conserving biodiversity was first introduced by the Countryside and Rights of Way Act. The NERC Act 2006 extended the duty to have regard to the purpose of conserving biodiversity to all public authorities, including local planning authorities and statutory undertakers (as defined in the Town and Country Planning Act (1990), Part 11). The extension of the duty does not include reference to the Convention on Biological Diversity for anyone other than a minister of the Crown or government department. It is a general duty and applies to all biodiversity.

The NERC Act 2006 also further refines the definition of biodiversity conservation, stating that it includes restoring or enhancing a population or habitat.

A review of the duty and how well it is implemented was undertaken by Defra and the report was published in May 2010. The review found that many public authorities had undertaken work to conserve biodiversity. However, how much of this was undertaken due to the duty was unclear. The review also found no evidence that the Scottish duty, which is worded slightly differently and stronger, was any more effective than the duty in England and Wales.

The review made several recommendations for all local authorities and public bodies, local authorities only and also for Defra and Welsh Assembly Government, to take forward. However, none of the recommendations appear to relate directly to how development is or will be dealt with in the planning process.

England: Section 41

In England, this duty applies to any minister of the Crown and any government department and has specific reference to the Convention on Biological Diversity. However, Defra expects that the organisations affected will make reference to the lists of habitats and species of principal importance in England (produced under Section 41 of the NERC Act) when implementing the duty.

Defra has published guidance for local authorities on the implementation of the biodiversity duty. This document echoes policies set out in Planning Policy Statement 9, the accompanying good practice guide and PAS2010. Of relevance to developers is that it encourages local planning authorities to:

provide screening advice to developers prior to the submission of a planning application;
require relevant biodiversity information to be submitted with a planning application in order for the application to be considered valid;
use planning conditions and obligations to impose mitigation and enhancement measures if such measures are not included at an appropriate level in the development proposal;
monitor the implementation of planning conditions and obligations relating to biodiversity conservation and to take action if these conditions are not met; and
actively seek opportunities to enhance biodiversity, in addition to statutory requirements to protect designated sites, habitats and species.

The guidance also suggests that planning obligations could be used to secure financial payments to ensure improved and ongoing management of nature conservation sites as mitigation for habitat loss within the development site. Defra has provided similar guidance on the biodiversity duty for other public authorities.

Wales: Section 42

In line with Planning Policy Wales, Section 5.2, organisations affected should pay specific regard to the lists of Habitats and Species of Principal Importance in Wales (produced under Section 42 of the NERC Act) when implementing the duty. Wales applied the Defra guidance for local authorities on the implementation of the biodiversity duty (see section above).

[back to top]