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Environmental Weekly News Round Up – 19 January 2024

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. 

BNG launch dates released

The government has recently announced the new dates when Biodiversity Net Gain (“BNG”) will go live. 

From 12 February 2024, BNG will me mandatory for new planning applications for major development under the Town and Country Planning Act (TCPA) 1990. Major development includes residential developments with 10 or more dwellings, or where the site area is greater than 0.5 hectares. Note that BNG only applies to planning applications made on or after 12 of February. If an application is made before that date, then it is exempt from BNG and any subsequent section 73 variations would also be exempt.

From 2 April 2024, BNG will apply for small sites. Small site development includes: (i) Residential development where the number of dwellings is between 1 and 9, or if unknown the site area is less than 0.5 hectares, and (ii) Commercial development where floor space created is less than 1,000 square metres or the total site area is less than 1 hectare.


Wind Power Surge: The EU’s Capacity Increase and How it Compares with the UK

It’s been recently reported that in 2023 the European Union (“EU”) experienced a remarkable increase in wind energy capacity adding 17GW of new wind power, surpassing the previous year’s addition of 16GW. This development reported by WindEurope, an industry body for renewable energy, includes 14GW from onshore and 3GW from offshore wind farms. The EU’s wind energy growth is part of a broader strategy by the EU to increase the share of renewables in its energy mix with a strong emphasis on both onshore and offshore wind farms.

WindEurope have highlighted the enhanced productivity of wind farms in the EU in 2023 attributing this efficient gain partly to regulatory changes that have eased grid integration and minimised energy wastage. As a result, wind power now represents nearly a fifth (19%) of the EU’s electricity generation with renewables contributing 44% overall.

EU policies that have been introduced (such as the European Wind Charter) have focused on streamlining the planning and permitting processes, supporting the turbine supply chain, and adjusting auction designs to promote wind energy. It also encourages member states to rethink auction designs in response to industry trends including supply chain issues. These policies are part of wider commitment to the European Green Deal and the 2030 climate targets.

The International Energy Agency (“IEA”) forecasts continued robust expansion in European wind power, predicting an annual addition of 23GW from 2024 to 2028. This growth is part of a global trend where renewable capacity is expected to increase 2.5 times by 2028. 

So how do the UK fare in comparison? - The UK government have pursued a slightly different focus within the wind energy sector. It has invested heavily in several large offshore wind farms with its main focus being more on incentivising offshore wind developments and addressing supply chain and cost related challenges in the sector as opposed to a pursuing a shared focus on onshore wind developments. This is partly due no doubt to the UK’s geographical advantages such as extensive coastlines and favourable wind conditions at sea, but also the UK government has faced far more challenges with onshore wind development due to local opposition and planning restrictions although this has been evolving.

The UK’s current target is to reach 40GW by 2030. This is an ambitious target and which if achieved would make wind power a significant contributor to the UK’s overall energy mix. Looking at the current growth rate in the UK’s wind power sector particularly in relation to offshore wind it has been robust and therefore if it continues aligns with this target.

It could be argued that if the UK government had a more balanced approach to onshore and offshore wind energy such as that of the EU that even higher targets than the current 40GW by 2030 could be achieved.

On balance when comparing the UK to the EU in relation to wind energy development it reveals distinct yet complementary paths in harnessing this renewable resource. While the EU adopts a more balanced approach between offshore and onshore wind energy driven by a collective policy framework and diverse geographic conditions across its member states, the UK has established itself also as a front runner in offshore wind capacity. Most importantly it must be remembered that the EU and the UK are not in competition in relation to wind energy but rather are complementary to one another. The UK’s leadership in offshore wind is a crucial part of Europe’s renewable energy landscape.


Roadmap for 24GW nuclear generation is unveiled

The government has recently released the Civil Nuclear Roadmap to 2050, which details its strategy to quadruple the UK’s nuclear generation to 24 gigawatts by 2050.

In order to achieve this objective, the government will focus on the following:

  • Launching consultations on Alternative Routes to Market for New Nuclear Projects and a new approach to siting nuclear within the National Policy Statement (NPS), that will further inform the civil nuclear policy.
  • Publishing a Nuclear Skills Taskforce report alongside a Defence Nuclear Enterprise Command Paper, explaining how the government will ensure the civil and military nuclear ambitions address their shared challenges and opportunities. 
  • Completing the Small Modular Reactor (SMR) technology selection process led by Great British Nuclear, announcing which technologies will be supported to achieve Final Investment Decision (FID) by 2029.
  • Seeking to reach Final Investment Decision on Sizewell C before the end of the current Parliament.
  • Monitoring the construction of Reactor Units 1 and 2 at Hinkley Point C in Somerset so that the first new nuclear project in a generation can come online before 2030.
  • Publishing a response to the consultation on nuclear decommissioning and managing radioactive substances, including radioactive waste.

Among other matters covered in this roadmap, the government also committed to secure investment decisions on new nuclear projects to deliver 3-7GW every 5 years between 2030 and 2044, and revealed an investment of £300 million into the domestic production of High Assay Low Enriched Uranium (HALEU) was also revealed. This would make the UK the first country in Europe to have a high-tech nuclear fuel programme.

The roadmap is another example of the recent push of the government to promote nuclear energy, which should aid the UK achieve its net zero objectives.


Education net-zero roadmap to be published by Autumn 2024

This week, Baroness Barran, Parliamentary Under-Secretary of State at the Department for Education (“DfE”), has confirmed to the Environmental Audit Committee (“EAC”) that a detailed roadmap to get nurseries, schools and colleges to meet sustainability targets will be published by Autumn this year. 

The roadmap is to build upon existing guidance that is voluntary, rather than mandatory, to follow. It is expected to clarify how the Department for Education’s sustainability targets are to be met and the timeframe in which they can be achieved. 

The EAC Chair had written to the Department for Education in November 2023 raising concern at the lack of progress being made to decarbonise the education estate and the significant funding gap between the Department’s sustainability ambitions and current spending plans. 

Following this week’s announcement, EAC Chair, Rt Hon Philip Dunne MP, has said:

“In November, the Committee raised alarm that the Department for Education’s current plans would see only 20% of the schools estate in England net zero compliant by 2050. This is a significant worry when education is currently the largest emitter of carbon from buildings in the public sector. For the whole of the UK to meet net zero, the education sector in England must make swifter progress on decarbonisation.

I welcome the Minister’s commitment to publish a roadmap later this year for the Department for Education to meet its sustainability targets. This will be an invaluable resource, allowing the Department to set out in detail the challenge ahead and giving Ministers sufficient visibility of the urgent case for significant additional funding for this large element of the public buildings estate.”


HSE proposes to withdraw the approval of mancozeb, famoxadone and indoxacarb 

The Health and Safety Executive (“HSE”) recently conducted a review of two frequently used fungicides, Famoxadone and Mancozeb, as well as Indoxacarb, a controversial pesticide, in Great Britain. 

In light of new scientific information, the HSE concluded that the 3 active substances no longer satisfy the criteria for approval. It has recommended they be taken off Great Britain’s market and has forwarded details of this proposal to the World Trade Organisation for consultation.

Mancozeb is a broad-spectrum fungicide that has been on the market since 1961. It belongs to a group of chemicals called Dithiocarbamates (“DTCs”) which are contact fungicides used against a wide variety of funghi on many crops. The substance has been found to have severe effects on human and animal health as well as the environment. 

In the review of Famoxadone, the HSE found the oxazolidinedione fungicide, used effectively against spore germination, to pose great risks to birds, mammals and aquatic organisms. It deemed its use to have an “unacceptable impact”. 

For Indoxacarb, in a 2018 European Food Safety Authority report “a high long-term risk was concluded for small herbivorous mammals for the representative uses on maize and for small herbivorous and small omnivorous mammals for the representative uses on lettuce, as well as a high risk was concluded for earthworm-eating mammals from secondary poisoning, leading to a critical area of concern". The HSE recommended it be removed from the market in 2022 after its licence was not renewed in the EU.

The chief executive of Wildlife and Countryside Link, Richard Benwell, fully supports the HSE in its endeavour. He noted that these chemicals are still on sale in other countries like the US and that, in this instance, the UK government is a “a step ahead” of others. He provided that “The challenge now is for a similar approach in other areas of pesticide protection where the UK is more on the back foot, including the long-promised Pesticide Reduction Plan, other harmful pesticides permitted for use in the UK but not the EU and “emergency” permissions on a banned pesticide for the sugar industry."


Court of Appeal rejects latest legal appeal to Suffolk cables. 

The decision in Substation Action Save East Suffolk Ltd, R (on the Application of) v Secretary of State for Energy Security and Net Zero [2024] EWCA Civ 12 was published on 17th January 2023. The case involved an appeal by Substation Action Save East Suffolk (“SASES”) against a decision to refuse a judicial review into the substations at Friston.

The appellant argued that the High Court had erred in its decision, by not taking into account the risk of surface water flooding associated with the development, and the cumulative impact of other projects to bring energy onshore when rejecting the judicial review. 

The Court of Appeal ultimately decided to refuse the appeal. In their judgement, they decided that the developer did not need to show that there were no other areas with a lower risk of surface water flooding where the development could take place, while there were other projects in order to make a cumulative impact assessment. The risks of flooding from surface water are to be taken into account when deciding whether to grant development consent under section 104 of the 2008 Act. The original judge was correct in their interpretation of the policy and in finding that there was no irrationality or public law error in the way that the first respondent (the Council) dealt with the issue when granting development consent. 

A spokesperson for SASES has said that the group, which is contrived of neighbours to the site are considering an appeal to the Supreme Court. The group believe that there was a flood risk and cumulative impact effect from other projects, but in the court’s view, the decision to grant planning consent could not be challenged on those grounds.

Although the Court appeared to be firm in its approach to their application of paragraphs 159 to 167 of the 2021 version of the NPPF, it is yet to be known if there will be a right to for the group to appeal to the Supreme Court. Any future updates will be reported on in future roundups.