Biodiversity Duty - back on our agenda

2nd November 2007

According to new legal advice to HEFCE, the Natural England and Rural Communities Act 2006 –Section 40 Biodiversity Duty applies to English institutions.

HECFE sought direction on whether the Act applies to HEIs in England and the advice is that it does. In their advice to HEFCE (1) , Beachcroft LLP directed that HEIs are likely to be classified as public bodies for the purposes on section 40 of the Act and therefore will be subject to the biodiversity duty.

Interestingly the biodiversity duty does not constitute an obligation to conserve biodiversity but imposes the rather lesser obligation to ‘have regard to the purpose of conserving biodiversity’ which is defined in subsection 40(2) as including, in relation to a living organism or type of habitat, ‘restoring or enhancing a population or habitat’.

I quote from the letter ‘Subsection 40(1) provides that the biodiversity duty only applies to the extent that a public authority is exercising its functions. It is also apparent that a public authority will be obliged to have regard to the purpose of conserving biodiversity only to the extent that to do so is consistent with the proper exercise of the public authority's functions. That is, if having regard to the purpose of conserving biodiversity is incompatible with the proper exercise by the public authority of one or more of its functions, it will not be obliged to comply with the duty in relation to the exercise of that function. ‘

Members may also be aware that a Biodiversity indicator has just been added to the UK Estates Management Statistics survey.

See the full letter below.

Iain Patton

• Note that this advice was to HEFCE alone and no other liability is accepted