Since 1 January 2023, all public authorities have been under a statutory duty to conserve and enhance biodiversity. Those authorities have 12 months (until 1 January 2024) to formulate their compliance plans meaning that they must consider the actions that they can take. Thereafter, authorities must set the appropriate policies and specific objectives; and then they must take action.
This week, the UK Government published guidance to public authorities on how to comply with their duty and how to report on their actions. In this article, we describe the duty and highlight key elements of the guidance.
Who is subject to the conserve and enhance duty?
The duty impacts hundreds of public authorities exercising functions in England, including:
- All 24 ministerial departments within government;
- 20 non-ministerial departments;
- 422 agencies and other public bodies;
- 111 high profile groups;
- 19 public corporations;
- Local authorities and local planning authorities;
- Statutory undertakers; and
- People holding an office under the Crown, created by public general acts; or remunerated by Parliament.
Although the guidance is aimed at authorities subject to the statutory duty to conserve and enhance biodiversity, there are relevant suggestions which all organisations, including those in the private sector, might wish to consider. For example, as part of setting and executing a corporate nature plan.
When to comply?
The first milestone occurs in just over seven months' time. By the end of the year, authorities need to have considered the actions that they can take to conserve and enhance biodiversity. That consideration or assessment will need to be revisited within five years to make sure that the steps proposed remain appropriate and relevant. As soon as possible after that initial consideration of actions, authorities must set relevant policies and objectives.
In order to fulfil their duties, public authorities are required to consider local nature recovery strategies, species conservation strategies and protected site strategies prepared by Natural England. This should help to keep actions focussed and consistent with the needs of the areas in which the public authorities are operating. There will be approximately 50 local nature recovery strategies across England which should be in preparation now.
In addition to the focussed strategies noted above, the UK Environmental Improvement Plan (EIP) (which we covered in our previous insight) highlights the Government's overall strategy for habitat restoration and halting the decline of species abundance. The EIP is clearly relevant to anyone, whether public or private, in setting their nature and biodiversity plans.
What action will be required?
The guidance makes various suggestions as to what steps could be taken by a public authority to satisfy its duty. Clearly what is appropriate for one authority will not necessarily suit another with different functions and operating in a different area of England, for example:
- Land can be managed differently to improve biodiversity - many public authorities will own or occupy land which can be used in part to create new wildlife corridors;
- a different approach to planting or landscaping can be taken, ensuring that only native and sustainably sourced plants and trees are planted;
- herbicides, pesticides; and fertiliser use could be reduced or eliminated;
- dead and fallen trees in woodlands could be left in situ, to encourage new habitats to be established;
- landscaping and biodiversity areas could be managed better to ensure outcomes are maximised;
- bird, bat and insect boxes could all be installed in appropriate places;
- green walls or roofs could be installed; and
- native wildflowers could be planted to encourage and support pollinators.
In addition, the guidance offers practical advice for property maintenance which can be adopted to support the biodiversity duty. Public authorities should, for example, ask themselves:
- Does all vegetation near a building need to be removed?
- Can chemical use be reduced?
- When undertaking maintenance works, can this be done at a time which is less likely to adversely impact wildlife?
- Can energy and water use be reduced, on the basis that this would reduce pollution levels and therefore reduce stress on wildlife and habitats?
Education and advocacy
Recognising the particular role that public authorities play in our lives, the guidance stresses the need to use the biodiversity duty as an opportunity to educate and inform all stakeholders, in particular the general public. Public authorities are encouraged to talk about biodiversity in their communications to include stakeholders in setting policies, educate staff and raise awareness generally. In addition, the guidance recommends a review of policies to see where biodiversity improvements and enhancements can be made which may impact transport, waste, procurement, and water use.
Reporting
Local authorities and local planning authorities (LPAs) are required to publish a biodiversity report by 1 January 2026 and every five years (or less) thereafter. Even if not required to create a report, it may become good practice for all authorities to disclose the actions that they have taken. In future, Government may require all authorities to publish a report.
The guidance sets out a suggested reporting structure for local authorities and LPAs. LPAs in particular will need to report on the expected outcomes of the biodiversity gain plans that they have approved pursuant to the mandatory biodiversity net gain policy commencing in November this year.
Conclusion
Many public authorities may not be aware of the biodiversity duty that they are subject to, or else may be struggling to understand how biodiversity is relevant to their functions. In this respect, the guidance offers really valuable suggestions as to the steps that can usefully be made. What is proportionate and appropriate will need careful consideration by all authorities; and even where no statutory report is required, it will be a matter of good governance to record and disclose steps taken.
The focus on biodiversity amongst all stakeholders has never been so high. Therefore, keeping to a statutory duty at the barest minimum may prove problematic. The guidance advocates strongly for public consultation and engagement and it is foreseeable that those authorities who fail to properly fulfil their duty will face questions, if not criticism. In this respect, their position will be no different to those in the private sector, and a higher standard may well be expected given the need for leadership.
For further information about the issues raised in this article, please contact sustainability partner, Ben Stansfield, Emma Cartledge-Taylor (senior associate) or any member of the Planning and Environment team.