Get in on the Act: The Environment Act 2021

The Environment Bill (the Bill) was first introduced in the House of Commons in the 2019-2020 parliamentary session, with its first reading on the 30 January 2020. After a carry-over motion, the Bill began Report Stage in the 2021-2022 parliamentary session on 26 May 2021. The legislation completed its passage through parliament on 13 October 2021 and received Royal Assent on 9 November 2021.

The Bill began its passage as a Government Bill, with sponsorship from the Secretary of State for the Environment, Food and Rural Affairs (EFRA) and the Minister for the Pacific and the International Environment. The Queen's Speech listed the Government’s intention to bring the Bill forward and confirmed that it is a Public Bill, in that it applies to everyone within the jurisdiction.

The Environment Act operates as the UK’s new framework of environmental protection. Given that the UK has left the EU, new laws that relate to nature protection, water quality, clean air, as well as additional environmental protections that originally came from Brussels, needed to be established. The Environment Act allows the UK to enshrine some environmental protection into law. It offers new powers to set new binding targets, including for air quality, water, biodiversity, and waste reduction.

The Act is a vehicle for a number of Department for Environment, Food and Rural Affairs' (Defra) different environmental policies, and sets out the legal framework for significant reforms to local authority waste and recycling services, as well as creating new statutory duties for local authorities on nature recovery. Taken together, the Act establishes a new relationship between central and local government on environmental improvement.

The LGA worked extensively with Members of Parliament (MPs) and Peers during the passage of the Bill (now Act) to provide information and research on the Bill’s implications for local government; support with the drafting and tabling of amendments; influence decision makers to secure favourable outcomes for councils; and garner cross-party support for amendments that were in the interest of local government.

• As far back as 2018, the LGA fed into the ongoing work that paved the way for the Environment Bill. In 2018, the Government set out their policy paper “25 Year Environment Plan” setting out the Government’s plan to increase clear air; clean water; protect wildlife; reduce Environmental Hazards; minimise waste; and generally combat climate change, setting the agenda for the forthcoming Bill. The Environmental Audit Committee (EAC) launched an inquiry into the 25 Year Plan, and in response, the LGA submitted evidence to the Committee highlighting our priorities and pledging to continue working with the central government to improvement environmental performance.
• To support this work, the LGA then launched the Climate Change Hub which facilitated the sharing of best practice by creating a forum for councils who have declared a climate emergency, or made any other type of commitment to reduce carbon and improve the environment, share information and experiences. Alongside this, the LGA produced a free monthly bulletin on climate change which is a round-up of new LGA resources, best practice examples, and latest news for councils.
• The LGA also passed a motion at its 2019 Annual Conference and Exhibition in support of the UN Sustainable Development Goals (SDGs) and the role of local government in delivering them. This included a declaration of a ‘Climate Emergency’ and commitment to support councils in their work to tackle climate change by providing a strong unified voice for local government and sharing best practice across all councils.
• At a Board level, through the Environment Economy Housing and Transport Board and the Improvement and Innovation Board, the LGA established an open-ended Climate Change Task Group to steer the strategic engagement with Government on climate change matters in this COP26 2021 and beyond.  The Group continues to promote the interests of local communities and the leadership role of councils, in partnership with national government, as we work together to meet the Net Zero ambitions and adaptation needs.
• The LGA also submitted both written and oral evidence to the Public Bill Committee. The LGA primarily used this as an opportunity to raise concerns about the new burdens that will be imposed on councils.

As the Bill began its passage through Parliament, the LGA took extensive action to amend and influence the Bill in line with the interests of councils and with a view to increase overall environmental performance. Action taken by the LGA included:

• At Second Reading in the House of Commons, briefing in favour of the Bill’s intention to strengthen local powers in relation to air quality enforcement; calling for more responsibility to be placed on the manufacturers and producers who create plastic refuse in the first place; and outlining that for the Bill to be a success, new responsibilities must be fully funded and councils should have the support and capacity they need to deliver on these ambitions.
• Seeking to strengthen a number of proposals in Part 6 of the Bill, which relates to Nature and biodiversity, through supporting an amendment tabled by Dr Alan Whitehead MP (Labour, Southampton), Ruth Jones MP (Labour, Newport West), Daniel Zeichner MP (Labour, Cambridge), Gill Furniss MP (Sheffield Brightside, Labour) and Fleur Anderson MP (Labour, Putney), that sought to ensure local planning authorities will be responsible for requiring biodiversity net gain in new developments.
• The Bill also provided greater enforcement powers to the Forestry Commission to reduce illegal tree felling and will require local authorities to consult residents. The LGA argued that this is a new burden and must be fully funded.
• At Report Stage in the House of Commons, the LGA engaged with its Vice-Presidents encouraging them to speak out on Part 3 of the Bill, which relates to Waste and Resource Efficiency. The LGA lobbied to include the term ‘full net cost’ that would ensure that local authorities are paid in full by producers the cost of managing specified products and materials at end of life.
• Similarly, in relation to Part 5 of the Bill and water security, the case was made by the LGA during Report Stage in the Commons ,  to allow local government to increase the application fee for the Land Drainage Consents in order to fully cover the cost of the process.
• As the Bill made its way from the first chamber to the second, the LGA continued its work to voice the concerns of local government. During Second Reading in the House of Lords, the LGA lobbied for local authority air quality plans to override the national policy of public agencies where it is in direct conflict with air quality goals. The objective was to recognise the work that councils are already taking in improving air quality and reform local powers in relation to enforcement.
• Work was also carried by the LGA to require producers to pay for fly tipping removal as part of their responsibility to pay disposal costs. Working with our Vice-Presidents and parliamentary supporters in the House of Lords, the LGA supported an amendment that would have ensured the waste system to be reformed and for producers to meet the costs of local authorities, including the cost of littering and fly-tipping discarded packaging.
• In addition, the LGA offered our support to an amendment tabled by Lord Kerslake that intended to ensure Biodiversity Credits raised from developments are reinvested in the locality in which the development takes place. Throughout the passage of the Bill, we maintained that Credits should be retained by local authorities so that funding stays in the area where development takes place, and local people can have a say in how this funding can be used to improve the natural environment.
• Further action was taken by the LGA to support an amendment that would have will granted local authorities increased powers to control emissions from combustion plants where they have declared an ‘Air Quality Improvement Area’.
• The LGA was also pleased to see central government listen to our calls and include a line in the Bill on ensuring local authorities are sufficiently funded to deliver the Environment Bill, where there are new burdens.
• Following consultation with members, we made the case to the Government that a total ban on the export of plastic would have negative implications for councils which was accepted. Instead, the LGA repeatedly called for non-recyclable plastic to be removed from packaging.

Governance and the Office of Environmental Protection (OEP) (Part 1: Chapter 1 and Chapter 2)

The Act introduces a new framework for setting long-term, legally binding targets for environmental improvement. These targets will sit with the Secretary of State. Through the Bill’s passage, we supported the model of focussing challenge at the level of national government. The Act legally obliges policy-makers to have due regard to the environmental principles policy statement when making policy decisions. This will provide a clear national focus and direction, with the flexibility to allow different local solutions. We particularly welcome the inclusion of the polluter pays principle and anticipate that this will apply to producers of waste packaging. The Act establishes the new OEP as an independent, domestic watchdog. A body whose functions include those of a public nature will have a duty to co-operate with the OEP in connection with the exercise of its functions. The OEP will have enforcement functions over public authorities who fail to comply with environmental law and powers to deal with significant environmental complaints. It can issue notices to public authorities and there are powers in the Act for the OEP to apply for judicial review of public authorities where serious failure to comply with environmental law takes place. It will be essential that the OEP board contains knowledge and direct experience of local government, as one of the public authorities which it will have to work with.

Waste and Resource Efficiency: recycling (Part 3)

Local government has long supported measures that reduce the amount of unnecessary and unrecyclable material becoming an issue in the first place. The Act includes provisions that will require producers to pay the full net cost of managing specified products and materials at end of life, to incentivise more sustainable use of resources. We welcome this commitment. The LGA has long called for the system to be reformed and for producers to meet the costs of local authorities, including the cost of littering and fly tipping discarded packaging. We have been working with (Defra) to shape the reformed producer responsibility scheme. The provisions also establish a deposit return scheme for drinks containers. A deposit return scheme has the potential to increase recycling and change consumer behaviour, but it needs to be based on sound analysis of the cost and benefits. We look forward to further engagement with Defra on the impact on local authority kerbside collections, litter and fly tipping. The Act proposes introducing a core set of consistent materials for recycling, which the LGA supports. Most councils already collect these and we look forward to working with government to develop the proposals and secure any additional funding that councils might need to implement the reforms successfully. At the same time, retailers and packaging manufacturers must reduce the amount of unnecessary and non-recyclable packaging.

The process by which materials for recycling are collected should be a local decision. Collecting materials in separate streams will not work in many areas. If councils are compelled to introduce separate collection streams this will have financial implications, for example on existing contracts for sorting waste, which will need to be fully funded. It is helpful that the Act means councils will have local flexibility where there are technical, economic and environmental reasons for collecting materials together. We will be working with Defra on the implementation of this proposal. We support the ambition to introduce weekly food waste collections, providing that the cost to councils is fully met through new funding. We are pleased the Act sets out exemptions and will work with councils and Defra to understand the practical challenges in collecting food waste, particularly from flats. The Act proposes to enable charges to be applied to specified single-use plastic items. There is little detail on how charges would be applied. We encourage Defra to consider applying producer responsibility obligations to single use items such as coffee cups to ensure that producers are paying towards the cost of recycling. The Act also proposes to ensure businesses and public bodies present recyclable materials for separate collection and arrange for the separate collection. The LGA supports the principle that businesses should play their part in meeting national recycling targets. We will be working with councils to understand the impact this will have on them and the role they could play in helping businesses recycle.

Waste and Resource Efficiency: litter and waste crime enforcement (Part 3)

The Act includes new measures for regulators including local authorities to tackle waste crime and illegal activity, including a new power to remove waste when no other route is available. Littering creates unnecessary additional work for councils. We believe that the public wish to see councils taking enforcement action against those who spoil the environment for the majority of responsible citizens. We will work with Government to better understand the purpose and value of any new guidance. Criminal activity is undermining legitimate, responsible waste operators as well as creating additional costs for councils and other public services. We will work with Government to understand the funding and service implications of any new powers.

Waste and Resource Efficiency: other measures (Part 3)

The Act contains other measures that will have an impact on the wider waste sector. This includes a provision that will enable government to set resource efficient product standards and information and labelling requirements. This ambition is welcome but local government must be closely involved in developing these standards, to ensure that they maximise opportunities for re-use and recycling.

Air Quality (Part 4)

We welcome the Act’s intention to strengthen local powers in relation to air quality enforcement. Existing mechanisms are decades old, misaligned with one another and need to be reformed to fit with modern sources of emissions. Additional resources will need to be available for councils to deal effectively with environmental protection. The Act updates, simplifies and strengthens the local air quality management framework (LAQM). In particular it ensures that responsibility for solutions to poor air pollution is shared across local government structures and with relevant public bodies. We are seeking as wide as possible interpretation of relevant public authorities and as strong as possible duty for them to co-operate with local authorities in their clean air target. We would also seek for local authority air quality plans to override the national policy of public agencies where it is in direct conflict with air quality goals. For example, Highways England should not exempt their roads from chargeable clean air zones except with local agreement. The Act includes Amendments to the Clean Air Act (1993), which will seek a simpler regime for smoke control enforcement, allowing a possible decriminalised regime with a simplified structure for issuing penalty notices. We support increased use of decriminalised enforcement in order to reduce the administrative burden on councils exercising their enforcement functions. There will also be additional enforcement powers for domestic burning. It will extend these powers to allow enforcement on moored vessels. We have specifically called for powers to tackle emissions from moored vessels and welcome developments in this area.

Water (Part 5)

This section includes measures intended to support new and existing internal drainage boards. The Act amends the Land Drainage Act 1991 to enable certain valuation calculations to be provided for in secondary legislation, so that necessary updates to the calculations (including data sources) can be readily made. It is not clear what impact this will have on local authorities, as they part pay for Internal Drainage Boards through a special levy. Councils are under-resourced to deliver their local flood risk management and statutory consultee responsibilities. The Act is a missed opportunity to address this. There should be a change of the rules relating to council tax referendums so that levies, such as internal drainage board levies, do not count against councils’ own referendum limits. The median cost to process a single land drainage consent application is £250, five times the nationally set £50 application fee. The Land Drainage Act should be amended to allow locally-set fees for flood defence consenting.

Nature and biodiversity (Part 6 and Part 7)

The Act includes provisions to strengthen and improve the duty on public bodies to conserve and enhance biodiversity, including mandating a net gain biodiversity through the planning system. We support the principle of increasing biodiversity net gain through the planning process, but we have concerns about the implementation of these proposals and the new burdens for councils. Planning departments will need to be supported with the right skills and resources to make this work. We do not support a mandatory national percentage target. Local site variation will affect the appropriateness of a single target. Revenue from the sale of proposed statutory biodiversity units (where improvements on site are not possible) should be collected and spent locally by local authorities. Any additional policy requirements relating to biodiversity net gain should be taken into account by developments alongside any other costs, including their own profit expectations and risks, to ensure that proposals for development are compliant with Local Plans. Consideration should be given as to whether the current national planning practice guidance on viability could benefit from further strengthening in this regard. The Act requires the preparation and publication of Local Nature Recovery Strategies. Further work will need to be done with councils to establish what the impact of these will be on conservation covenants. The Act also provides greater enforcement powers to the Forestry Commission to reduce illegal tree felling and will require local authorities to consult residents. Decisions on the felling of street trees should remain a matter of local determination. This is a new burden and must be fully funded, however the Act does not cater for this new burden.

As this Act was scrutinised by Parliament we worked closely with our President, Vice-Presidents, as well as other MPs and Peers, briefing them ahead of debates and suggesting amendments. On behalf of local government, we are grateful to all those parliamentarians who supported us and championed the concerns and arguments of the sector.