Environmental news update – 8 November

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.

NEWS ROUND UP

New bill: PFAs in drinking water

A new bill has been introduced in the UK Parliament (available here), aiming to impose stronger legal limits on PFAS. The bill is a response to growing concerns due to insufficient regulatory measures relating to PFAS, often referred to as “forever chemicals” because they do not break down in the environment.

Liberal Democrat MP Munira Wilson, who introduced this bill, provided the following in her motion:

“Despite all the alarming health risks I have just outlined, there is currently no statutory regulation of PFAS chemicals in England and Wales and no legal limit on the amount of PFAS present in our drinking water. There is only guidance that water is “wholesome” and a limit of 0.1 micrograms for only 47 out of the thousands of existing PFAS chemicals.”

The guidance referred by the MP is the one issued by the Drinking Water Inspectorate (“DWI”) in August 2024 (available here). This guidance imposed the new duty to monitor PFAS and ensure a limit of 0.1 micrograms per litre (µg/L) for 47 chemicals listed in Annex C of the Information Direction, among other provisions as we previously reported here. 

The proposed legislation follows the guidance above and seeks to introduce a new statutory drinking water limit for PFAS together with an obligation for water companies to monitor PFAS in the drinking water supplies.

As a comparison, the US has restricted specific PFAS chemicals to 4 nanograms per litre, and EU countries from January 2026 will enforce a cap of 0.5 micrograms per litre for combined PFAS levels in drinking wate. Based on this international experience, the bill also calls for “a clear need for European alignment”.

The bill is to be read a Second time on Friday 24 January 2025.

Autum Budget 2024

The Chancellor Rachel Reeves delivered her first budget last week which was welcomed by planning and development bodies. The main focus was on funding for council planning teams, housebuilding and transport infrastructure, promising new opportunities for growth and investment. There is encouragement for the public and private sectors to work together, which would help bolster energy security. Here are some key points: 

• Defra’s resource budget is set to increase from $4.7 billion in 2023-24 to £4.8 billion in 2025-26. Despite the nominal increase, the document indicates an annual average real-term decline of 1.9% when adjusted for inflation. Over £5 billion over two years will be provided to support the transition towards a more productive and environmentally sustainable agricultural sector in England as well as over £400 million for tree planting and peatland restoration, which are important for carbon sequestration and biodiversity.

• Environmental land management tax changes cover the extension of Agricultural Property Relief from Inheritance Tax to include environmental land management from 6 April 2025. The relief will be available for land managed under an environmental agreement with, or on behalf of, various UK government bodies, including devolved governments, public bodies, local authorities, or approved responsible bodies.

• The energy efficiency measures are part of a broader strategy to improve the energy performance of homes and industries in the UK and contribute to net zero targets. The budget commits an initial £3.4 billion towards heat decarbonisation and household energy efficiency over the next three years, with a promise of an additional £6.6 billion investment over the next parliament. Due to high demand, the government will increase funding for the Boiler Upgrade Scheme in England and Wales this year and next, as well as provide funding to grow the heat pump manufacturing supply chains in the UK. To help existing firms decarbonise and grow, the government has also confirmed £163 million to continue the Industrial Energy Transformation Fund over the period from 2025-26 to 2027-28. 
• In relation to transport, Reeves is continuing the freeze on fuel duty, the 5p cut and promises there will be no higher taxes at the fuel pumps. An increase of £500 million is budgeted for local roads maintenance in 2024-25. Next month the government will discuss the next steps for the East West rail project aiming to connect Oxford, Milton Keynes and Cambridge to unlock land for housing and laboratories. There was also a mention of an increased rate of Air Passenger Duty for private jets by 50%. 
• Under the Local Nutrient Mitigation Fund Round 2, £47 million has been allocated to support nutrient neutrality. 
• In light of the Finch Supreme Court Judgment, the government has published a consultation on new environmental guidance for assessing end use emissions relating to oil and gas projects, which “seeks to provide stability for the oil and gas industry, support investment, protect jobs and ensure a fair, orderly and prosperous transition in the North Sea in line with our climate and legal obligations”. The Energy Profits Levy that was introduced in 2022 will increase to 38%. 
• A consultation on “how the taxation of offshore oil and gas will respond to price shocks” will be published in 2025 to provide some long term certainty.
• Reeves has confirmed that the Carbon Border Adjustment Mechanism will be introduced on 1 January 2027.
• The government will permit a ‘mass balance’ approach to allow chemically recycled plastic to contribute to meeting Plastic Packaging Tax requirements. 
• A consultation “to review the effectiveness of Land Remediation Relief, to consider whether the relief is still meeting its objectives and is good value for money” will be published in spring 2025. 

There is focus on climate action but some experts in this area argue that more needs to be done to deliver a green industrial revolution. 

COP16: Milestones and Challenges in the Global Push for Biodiversity Conservation 

The 16^th Conference of the Parties to the Convention on Biological Diversity (“CoP16”) concluded with a series of ambitions and landmark decisions that highlight the worlds commitment to the Global Biodiversity Framework (“GBF”). Hosted in Cali Columbia CoP 16 set new standards for biodiversity conservation, community engagement and environmental finance all underscored by increased efforts to involve Indigenous Peoples and Local Communities (“IPLCs”) as vital stakeholders.

One of the most impactful decisions was the adoption of a new Programme of under Article 8(j) which commits to integrating indigenous knowledge and community rights with the GBF. A newly formed Subsidiary Body on Article 8(j) formalises the role of IPLCs recognising their contributions to biodiversity conservation and ensuring their voices are represented on an institutional level. This decision paves the way for sustained and meaningful engagement with indigenous and local communities in biodiversity initiatives worldwide.

There was also progress on marine and land conservation targets with a breakthrough on Ecologically or Biologically Significant Marine Areas with countries agreeing to a new process for identifying and updating these critical areas. The goal is to integrate advanced scientific knowledge and local insights into the management and conservation of marine biodiversity.

In addition to financial commitments CoP16 saw the launch of several forward-thinking initiatives aimed at accelerating biodiversity conservation. The Mainstreaming Champions Group led by 18 governments seeks to incorporate GBF goals across all economic sectors. Meanwhile the Debt for Nature Coalition introduced by six environmental organisations aims to leverage sovereign debt conversions to unlock significant funding for nature.

While CoP16 made significant strides in biodiversity commitments a few challenges and unresolved issues have tempered its achievements this time. There was a lack of consensus on closing international biodiversity finance gaps. Despite an increase in contributions to the GBF and the creation of the Cali Fund for Digital Sequence the voluntary nature of contributions and lack of a global dedicated biodiversity fund left many stakeholders concerned about long-term financing sustainability. 

Although many ambitious targets were set, due to time constraints CoP16 was unable to adopt all necessary measures leaving critical decisions including budget approvals and finer details of the monitoring framework unresolved. 

Some parties felt the outcome of CoP16 fell short of a more cohesive framework. Effective climate-biodiversity synergy is crucial to addressing overlapping environmental crises and without deeper alignment these initiatives may remain separate which could reduce their combined effectiveness in tackling interconnected environmental challenges.

In conclusion, CoP16’s successes were significant but came with several challenges that need to be addressed for its ambitious biodiversity goals to be fully realised. Financing, concrete implementation strategies and improved equity in resource distribution will be crucial topics leading into future discussions particularly the 2026 meeting.

West of England leads the way with first Local Nature Recovery Strategy

Everyone has a role in nature’s recovery, from individuals to local authorities. Local Nature Recovery Strategies (“LNRS”), led by local evidence, aim to prioritize and target nature investment effectively. LNRSs are new spatial plans mandated by the Environment Act, designed to guide decision-making on prioritizing areas for ecological recovery and net gain mitigation. 

The West of England Combined Authority (“WECA”) has become the first of 48 responsible authorities to publish an LNRS, alongside a bespoke toolkit, marking a significant milestone for The Department for Environment, Food and Rural Affairs (“DEFRA”). With 48 authorities preparing strategies across England, these plans will help target biodiversity net gain and guide landowners in making impactful changes. This initiative supports national targets, including creating over 500,000 hectares of wildlife-rich habitat by 2042, starting with the West of England’s strategy. The process of developing this toolkit also went through a It through a public consultation, to ensure the strategy works for local people and those who will be supporting on it’s delivery.

The toolkit includes a map that displays “mapped measures for nature recovery” highlighting priorities such as linking woodland habitats and creating grasslands. Sophie Spencer, WECA’s senior environment manager, expressed pride in being the first to publish an LNRS, attributing it to the mayor’s commitment to biodiversity, climate, and community. 

Dan Norris, the mayor of West of England, noted the region’s historical significance in natural history and its role in addressing species decline and ecological emergencies. He highlighted the ambitious plan to support nature recovery across the region, with investments from businesses and landowners. Norris believes that: “…With investment from businesses and landowners across our region, and everyone doing their bit, the future looks bright once again.”

DEFRA nature minister Mary Creagh welcomed the launch, stressing the urgent need to halt and reverse nature’s decline. She stated that LNRSs like WECA’s “will lay out a path to creating places where people, plants and wildlife can thrive”. Creagh also highlighted the importance of collaboration between communities, businesses, and local partners in driving nature recovery for future generations.

CG Fry & Sons Ltd v Secretary of State for Levelling Up, Housing and Communities: Challenge to landmark nutrient neutrality ruling to be heard by Supreme Court 

The Supreme Court has granted permission to hear the latest appeal in the landmark case of CG Fry & Sons Ltd v Secretary of State for Levelling Up, Housing and Communities.

The case centres around whether nutrient neutrality requirements can be imposed on a reserved matters or condition discharge application even where the outline permission pre-dated that requirement. CG Fry & Sons were granted outline planning permission in 2015 for a development near Wellington, Somerset comprising housing units, commercial and community spaces and a primary school. 

Somerset Council decided not to discharge pre-commencement conditions attached to the reserved matters approval for the third phase of the scheme in 2021, secured in 2020, on the basis that an “appropriate assessment” of the impacts on nearby protected sites had not been carried out pursuant to regulation 6(3) of the Habitats Regulations 2017. Such an assessment was considered necessary given the proximity of the development to the (protected) Somerset Levels and the Moors Ramsar site, notwithstanding that the original planning permission had pre-dated this requirement. 

This decision was upheld by the planning inspector, following which GC Fry & Sons commenced judicial review proceedings, arguing that nutrient neutrality rules should not be applied at the discharge of conditions stage where outline permission had already been granted. 

At first instance, the High Court dismissed the case, finding that the nutrient neutrality rules aimed at mitigating the impact of nutrient pollution applied both at the final discharge of planning conditions phase as well as the earlier permission stage. The Appeal judgment, handed down in June 2024 upheld that High Court’s decision – see our commentary here.

CG Fry & Sons subsequently applied to the Supreme Court, setting out that the High Court and Court of Appeal had “misinterpreted some facts of the case and that the Supreme Court is the appropriate forum to rehearse these”. The timescale for the hearing has not yet been confirmed.