Part 6: Nature and Biodiversity Section 102: General duty to conserve and enhance biodiversity
Section 40 of the Natural Environment and Rural Communities Act 2006 ("the NERC Act") places a duty on public authorities to have regard for the conservation of biodiversity when delivering their functions. This section makes textual amendments to section 40 of that Act, to avoid repeating definitions. The revisions make more explicit the requirement for public authorities to assess how they can take action to conserve and enhance biodiversity, and then take these actions. This section also sets out how public authorities should abide by the revised duty.
	Subsection (2) adds to the heading of the biodiversity duty in the NERC Act, setting out that this duty is changing from "conserving" to "conserving and enhancing" biodiversity.
	Subsection (3) replaces existing subsections (A1) and (1) of the NERC Act with new subsections (A1) to (1F).
	New subsection (A1) defines the term "general biodiversity objective", which is used in section 40 to direct the activity taken by public authorities under this duty. This extends the duty of public authorities beyond the original NERC Act, which referred only to conservation, so that it includes the enhancement of biodiversity in England. The aim is to provide for the enhancement or improvement of biodiversity, not just its maintenance in its current state.
	New subsection (1) sets out that, in order to comply with the revised biodiversity duty, a public authority must periodically consider the opportunities available to improve biodiversity, across the full range of its functions. This represents a proactive, strategic assessment of a public authority’s functions, rather than considering each function in isolation as required by the original section 40 duty.
	New subsection (1A) sets out the process that the public authority must undertake following the strategic assessment. It may decide there is no action it can reasonably take that is consistent with the proper exercise of its functions. For example, it may decide a particular action is not possible within existing budget constraints, not good value for money or conflicts with other priorities. If there is action it can take, however, then paragraph (a) sets out that it must decide how that action can be put into effect, through appropriate policies and objectives. Paragraph (b) then requires the public authority to take the action.
	New subsection (1B) provides further detail on those activities considered to be contributing to the general biodiversity objective. It establishes that the duty can be satisfied by adjusting existing policies and objectives, rather than requiring public authorities to introduce new policies or undertake new projects.
	New subsections (1C) to (1E) establish the frequency with which the public authority should consider how it can improve biodiversity and then take action. New subsection (1C) provides that the initial assessment must be completed within one year of the amended duty coming into force. New subsection (1D) sets out that subsequent assessments to determine whether there is action it can reasonably take, and what that action should be, must take place at least every five years. New subsection (1E) requires that the decisions around which policies and objectives can be used to further the biodiversity objective, as required by subsection (1A)(a), should then follow as soon as is practically possible.
	New subsection (1F) explains that, although the requirement is to evaluate opportunities to fulfil the general biodiversity objectives "from time to time", a public authority is free both to carry out a strategic assessment of its policies and specific objectives and to take action for biodiversity at any interval, as long as this consideration takes place frequently enough to satisfy new subsections (1C) and (1D).
	Subsection (4) of section 102 amends an existing reference in section 40(2) of the NERC Act to ensure it refers to new subsections (1) and (1A) of the same section.
	Subsection (5) of section 102 requires that public authorities must have regard to any relevant Local Nature Recovery Strategies (LNRSs), Species Conservation Strategies and Protected Site Strategies as part of their strategic assessment of their functions, establishing the relationship between the measures. LNRSs map existing important areas for nature and show the opportunities that exist in an area to recover and enhance nature. LNRSs will support public authorities in deciding the most appropriate and effective action to take to further the biodiversity objective under new section 40(1A) of the NERC Act, and in turn subsection (5) will support the implementation of LNRSs. Species Conservation Strategies and Protected Site Strategies (introduced in sections 109 and 110 respectively) are more targeted measures intended to address a range of impacts on species and protected sites. They will also support public authorities in determining the most appropriate and effective action to take in those areas where such a strategy is in operation.
	Subsection (5) also adds a requirement for the Secretary of State to give guidance to local planning authorities. The guidance will specify how they are to take a local nature recovery strategy into account when discharging their duties under new section 40(1) and (A1) of the NERC Act 2006 concerning the conservation and enhancement of biodiversity. The Secretary of State is required to publish this guidance within two years from when this section comes into force, in such manner as the Secretary of State thinks fit. The Secretary of State is then required to keep the guidance under review and revise it when they consider it appropriate.
	Subsection (6) updates the existing explanation of "conserving biodiversity" by directing public authorities to give particular focus to the conservation, restoration and enhancement of species and habitats when deciding the actions to take under the biodiversity objective. This particular emphasis on species and habitats reflects their significance within biodiversity overall, and the wider benefits for nature and society that can be accrued through actions for species and habitats.
	Subsection (7) provides that in the case of HMRC, the duty does not apply to its functions in England alone, but also extends to its functions in Wales. This is to maintain the amendment made to section 40 by the Environment (Wales) Act 2016. This subsection also clarifies the spatial extent of the general biodiversity duty, establishing that the territorial sea adjacent to England falls under the duty.
	Subsection (8) amends section 41 of the NERC Act so that its references to section 40 correctly reflect the amendments made by this Act. It also adds a reference to enhancing biodiversity to section 41(1) of that Act. This reflects the increased level of ambition set out in the Act, for not only conserving the existing biodiversity of England but also enhancing biodiversity, where appropriate.