How Does the Natural Environment and Rural Communities Act 2006 Affect Us?

Natural Environment and Rural Communities (NERC) Act 2006

What is the Natural Environment and Rural Communities Act 2006?

Often shortened to the NERC Act 2006, the Natural Environment and Rural Communities Act 2006 is designed to protect wildlife, manage public access in countryside areas, and move nature conservation to the heart of public decision-making across England and Wales.

Other wildlife laws focus on penalising individuals who directly harm protected creatures and wild plants, whereas the NERC Act operates at an institutional level. It sets a legal requirement on local planning authorities and other public bodies to take steps to conserve biodiversity during any and all processes.

The Act directly shapes the planning process because planning officers need to follow the statutory requirement. Whenever you submit a planning application for a development or to in any way alter land use, the Act dictates what your local council expects you to account for before deciding whether or not to grant planning consent.

Why Was the Natural Environment and Rural Communities Act 2006 Produced?

Before the legislation was drafted, the responsibility for nature conservation, countryside recreation and farming support was split across multiple different bodies.

In the past, rural policy was fragmented, with English Nature handling wildlife conservation, the Countryside Agency overseeing landscape protection and access, and the Rural Development Service (RDS) managing agricultural land use.

It didn’t work, however, as one agency would encourage recreation in the countryside while another worked to protect fragile habitats from being damaged by the same foot traffic.

Away from government, advocacy groups like the Campaign to Protect Rural England (CPRE) called for clearer safeguards to protect rural areas and national parks from the threat of unchecked development and the hazards of vehicular damage.

As a way of resolving the conflicts and in an effort to create a joined-up approach, the UK government drafted the bill, and it then secured royal assent in March 2006. The Natural Environment and Rural Communities Act 2006 then replaced fragmented administration with a unified framework for wildlife and the countryside.

What Impact has the Natural Environment and Rural Communities Act 2006 Had?

Since it came into force, the NERC Act has transformed how conservation is carried out in England and Wales.

The introduction of Natural England helped too, as it simplified the process for developers, landowners and local councils with a single statutory body for ecological advice, planning consultancy and protected species mitigation licensing.

In the planning sector, the Act changed the way that local planning departments review planning applications. Local councils are defined as public authorities under law, meaning that case officers cannot ignore ecological issues affecting a development, and they need to actively check whether a proposed scheme could harm wild species or destroy important habitats before approving any plans.

The Act also created the first formal statutory lists of wild creatures and habitats that need dedicated conservation across England and Wales. It then gave practical legal standing to hundreds of species that didn’t previously receive comprehensive protection under the existing wildlife legislation of the time, including brown hares, common toads, hedgehogs and several bat species.

Important Parts of the NERC Act 2006

Across the Act, there are nine parts covering a total of 108 sections, including such topics as:

Within each section of the Act are specific legal requirements, powers and duties that apply across England and Wales.

In the space below, we’ve highlighted and explained a few key sections from the legislation:

Section 1 of the NERC ACT

Section 1 formally established Natural England as a statutory non-departmental public body for merging older conservation and land management teams into one entity.

The section outlines Natural England’s general purpose to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations.

For anyone involved in development, Natural England acts as a statutory consultee on major planning proposals, manages SSSIs and reviews mitigation licence applications.

Section 40 of the NERC Act

Section 40 is the central operational mechanism.

The section introduced a formal biodiversity duty to state that every public authority must have due regard to the purpose of conserving biodiversity and be consistent in the proper exercise of such functions.

As public authorities, the local planning authorities are encouraged by Section 40 to treat nature conservation as a material consideration in every planning decision.

The Environment Act 2021 has since strengthened the duty in England, moving the requirement from solely conserving nature to actively enhancing it.

Section 41 of the NERC Act

Section 41 insists that the Secretary of State publishes and maintains a list of living organisms and habitat types considered to be of principal importance for the conservation of biodiversity in England.

Known as the Section 41 (S41) list, it was developed based on scientific criteria from the Joint Nature Conservation Committee (JNCC) and serves as the definitive reference guide for planning officers when it comes to evaluating whether a proposed development will harm valuable wildlife.

The list includes 943 priority species and 56 habitats in need of conservation consideration.

Section 43 of the NERC Act

Section 43 introduced amendments to the Wildlife and Countryside Act 1981 to improve the protection of SSSIs.

The section clarified notification processes and gave Natural England an increased level of authority to inspect, manage and prevent damaging operations on or adjacent to designated nature conservation sites.

Part 6 of the NERC Act

Part 6 addressed long-running disputes over recreational motor vehicle use on public rights of way.

Both Sections 66 and 72 extinguished unrecorded public vehicular rights over bridleways, footpaths and restricted byways.

It effectively stopped mechanically propelled vehicles from using ancient unpaved routes to prevent physical damage to sensitive rural tracks and reduce disturbance to the present and surrounding wildlife.

How is the Natural Environment and Rural Communities Act 2006 Maintained?

The NERC Act is managed through the input of several statutory bodies and the work of oversight mechanisms working together.

Natural England issues guidance on how to discharge conservation duties, regularly updates species inventories, and advises on planning casework.

On a regional scale, local authorities maintain compliance by addressing development proposals against local plans and national policy, as well as their own statutory duties.

The executive oversight sits with the Department for Environment, Food and Rural Affairs (DEFRA). All environmental policy is directed by DEFRA, and it also helps to align UK nature conservation with the wider international directives previously overseen by the European Commission (EC).

In addition to the above, independent watchdogs monitor government departments to make sure that their environmental duties are upheld across all levels of administration.

Today, independent watchdogs monitor government departments to make sure environmental duties are upheld across all levels of administration.

Natural Environment and Rural Communities Act 2006 Penalties

With the NERC Act focusing primarily on the legal duties and administrative functions of public bodies rather than individual wildlife crime, enforcement action operates differently to traditional wildlife legislation.

Even so, if at any point someone fails to comply with the Act, it could lead to direct and costly consequences for the associated development projects.

If you were to submit a planning application without evaluating the impact on protected habitats or species, the local council cannot approve the scheme without risking breaching their statutory duties.

Planning officers will delay validation or refuse planning permission outright until the reports from the necessary ecological surveys are submitted. If a local council approved a development unlawfully without due consideration, third parties have the option of challenging the decision in court through judicial review to quash the planning approval.

Many priority species listed under the Act are also protected under the Wildlife and Countryside Act 1981 or the Conservation of Habitats and Species Regulations 2017. Damaging or destroying breeding sites or resting places is a criminal offence, and it can result in unlimited fines and a custodial sentence of up to six months.

In terms of by-law offences, driving an unauthorised motor vehicle along a public path where vehicular rights have been extinguished under Part 6 is an offence under the Road Traffic Act 1988, potentially leading to vehicle impoundment and fines.

Relationship Between the NERC Act and Planning

The Natural Environment and Rural Communities Act 2006 plays a decisive role in planning decisions across England and Wales.

Under national planning policy, planning officers from local authorities are required to promote the protection, restoration and enhancement of priority habitats and species.

Whenever a planning application is submitted, local councils cannot treat wildlife constraints and matters affecting the natural environment as an afterthought.

It is the job of the planning officers to review local biological records, request site-specific surveys whenever needed, and apply the standard mitigation harm first, mitigate unavoidable impacts through design, and compensate for residual loss as a last resort.

If a planning project threatens valuable species or habitat without proposing acceptable avoidance or mitigation measures, the local council cannot satisfy its legal obligations, and the planning application will be refused.

NERC Act Support Via Ecological Surveying

Part of successfully securing planning consent is identifying the ecological constraints on your development site as early as possible.

The standard starting point is to arrange a broad ecology survey, like a preliminary ecological appraisal (PEA) or ecological impact assessment (EcIA). As an example, a PEA consists of an ecological consultant conducting an ecological desk study of historical wildlife records before visiting the site in person for an extensive walkover survey, looking out for signs of protected species.

If a PEA identifies suitable habitat, returns with evidence of priority species or results in sightings of sensitive flora or fauna, the ecological surveyor will then go on to specify if further work is needed to satisfy your local planning authority.

Depending on the site itself, further ecology surveys could include bat surveys, great crested newt surveys, reptile surveys, badger surveys or checks for nesting birds.

As soon as the fieldwork is complete, the ecologist managing the survey process will create an ecology report detailing the baseline condition, potential impacts and practical mitigation strategies.

Reports from ecology surveys provide your local planning authority with the verifiable data needed to approve your planning application while fulfilling their duties under the NERC Act.

Comply with the NERC Act in Your Development

When it’s done correctly, complying with the NERC Act doesn’t need to delay your development or complicate your planning application.

By identifying ecological constraints before finalising your designs, you can avoid unexpected changes and keep your planning project moving forward.

The team at Arbtech work with developers, architects and private homeowners and landowners across the UK to help with resolving planning constraints quickly.

Our ecologists are located all over the country to cater to clients anywhere and everywhere. Our team can then go on to carry out ecology surveys, produce reports and guide you through the planning process with dependable advice.

If you are getting ready to submit a planning application and need to arrange an ecological survey or simply want to find out what surveys your local councils are likely to ask for, call us, email us or fill out a contact form to get a free quote.