Q&As

Does the duty contained in section 40 of the Natural Environment and Rural Communities Act 2006 and section 6 of the Environment (Wales) Act 2016 impose a duty on public authorities to have regard to or enhance and maintain biodiversity? If so, does this duty extend to the marine area?

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Published on LexisPSL on 06/07/2021

The following Environment Q&A provides comprehensive and up to date legal information covering:

  • Does the duty contained in section 40 of the Natural Environment and Rural Communities Act 2006 and section 6 of the Environment (Wales) Act 2016 impose a duty on public authorities to have regard to or enhance and maintain biodiversity? If so, does this duty extend to the marine area?
  • England
  • Wales

Does the duty contained in section 40 of the Natural Environment and Rural Communities Act 2006 and section 6 of the Environment (Wales) Act 2016 impose a duty on public authorities to have regard to or enhance and maintain biodiversity? If so, does this duty extend to the marine area?

England

Section 40 of the Natural Environment and Rural Communities Act 2006 (NERCA 2006) requires public authorities to have regard to the purpose of conserving biodiversity in the exercise of their functions, insofar as such regard is consistent with the carrying out of said functions. NERCA 2006, s 40(3) says that conserving biodiversity includes restoring or enhancing a population or habitat. There is no limitation in the wording of NERCA 2006, s 40 about what types of habitat are covered by the duty.

The phrase ‘public authority’ is construed widely, with NERCA 2006, s 40(4) stating that it includes:

  1. a Minister of the Crown

  2. a public body, including a government department, a local authority and a local planning authority

  3. a person holding a public office

  4. a statutory undertaker

NERCA 2006, s 41 sets out that the Secretary of State, as respects England, must publish a list of the living organisms and types of

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