Environmental Law Update - October 2025

The Court has confirmed that householders can be prosecuted for ‘causing or permitting’ the felling of a tree protected by a Tree Preservation Order (TPO) in Wales. While it was known to be an offence in England, the law is currently set out slightly differently in Wales.

The Court convicted an individual who ignored a TPO and instructed a tree surgeon to fell a 100-year-old lime, despite the refusal of a planning application to have the tree felled. The offence was only discovered 10 years later when the felled tree was discovered in a nearby nature reserve where it had been fly tipped. The Court ordered the defendant to pay £100,000 in prosecution costs, and a £16,000 fine.

Suspected Marine Targets Failures by Defra

The OEP has identified possible serious failures by Defra in relation to the Marine Strategy Regulations 2010. Under these regulations there is a duty on the Secretary of State to have taken measures to achieve or maintain Good Environmental Status (GES) of marine waters by December 2020.  The OEP launched an investigation in January 2025 into whether this target had been met, with evidence indicating that further measures were needed. 

Helen Venn of the OEP has said:

“Our investigation is seeking to ensure accountability for the suspected failure to take the necessary measures to achieve GES of marine waters by 31 December 2020, and if that failure has occurred, ensure that it is addressed as soon as possible through the introduction and implementation of an evidenced, resourced and timebound delivery plan”.  

The OEP has now sent Defra an information notice.  An information notice is sent when the OEP has “reasonable grounds for suspecting that the authority has failed to comply with environmental law”, setting out the suspected breaches.  

More information is available here.

New regulations to increase the total area of deep peat protected

On 8 September 2025, the Heather and Grass etc Burning Regulations 2025 were made. These amend the Heather and Grass etc Burning (England) Regulations 2021, and the amendments came into force on 30 September 2025. The 2025 Amending Regulations were followed by a Government response to consultation on providing additional protection to upland peat from burning. These amendments lower the threshold for prohibiting peat burning from 40cm to 30cm. Evidence shows that while burning can cause damage at any depth, peatlands at 30cm can sustain blanket bog habitat; shallower depths are more likely to contain non-peat soils.

Once implemented, these changes will increase the total area of deep peat on which burning cannot take place from 246,156 hectares to over 676,000 hectares. 

Government published the Heather and Grass Management Code on 30 September (“the Code”). This is a code of good practice to supplement the Heather and Grass etc. Burning (England) Regulations 2007 and 2021 Regulations. The Code is voluntary, however compliance will be ensured through the licensing system as provided for under the Heather and Grass etc. Burning (England) Regulations 2007.

Planning and Infrastructure Bill – Government amendments to Part 3 in the Lords Committee Stage

The Planning and Infrastructure Bill returned to the House of Lords Committee stage after the summer recess. A number of government amendments were agreed, these included:

• An Environmental Delivery Plan (“EDP”) must set out the anticipated “sequencing of the implementation of the conservation measures” relative to development. ;
• Natural England can only publish an EDP which seeks “to improve the conservation of the same feature elsewhere” if Natural England considers that such off-site measures would make a greater contribution to the improvement of the conservation status of the feature than on-site conservation measures.;
• The requirement for backup conservation measures to be included within an EDP in case primary measures prove to be ineffective;
• A requirement for Natural England to give its opinion in EDPs as to whether it considers that the proposed conservation measures will enable the EDP to pass the overall improvement test;
• Strengthening the overall improvement test which the Secretary of State must consider before making an EDP so that now the Secretary of State must ensure that the conservation measures must (by the end date of the EDP) materially outweigh the negative impact of development on the conservation status of each environmental feature;
• Increasing the requirements for midpoint, final and revocation EDP reports;
• Where Natural England requests, or the Secretary of State is minded, to make a significant amendment to an EDP (i.e. increasing the amount of development, changing the development area, or adding new conservation measures) the Secretary of State “must direct Natural England to consult” on the amendment.;
• Requirements for the Secretary of State to take remedial action in any case where an EDP ends and its conservation measures have been assessed not to have been effective. In these circumstances the Secretary of State “must take” remedial action as they “considers proportionate for the purpose of seeking to materially outweigh the negative effect on the conservation status of the identified environmental feature” that is or is likely to be impacted.
• In deciding “whether remedial action is proportionate” the Secretary of State “must take into account” the extent of the negative effect on the feature, the extent to which the remedial action would remedy that negative effect, and the cost of the remedial action.;
• Natural England’s “functions” now include “monitoring EDPs”. In doing this, they “must take sufficient measures to monitor” the effectiveness of conservation measures and the effects of the EDP in general. In doing this Natural England “must” have regard to Secretary of State guidance.;
• Natural England and the Secretary of State must take account of the best available scientific evidence when preparing/amending/revoking (but not when “making”) EDPs.
• Extensions of the matters to which Natural England and the Secretary of State must have regard to when preparing/amending/revoking (but not “making”) an EDP.

However, despite the Government amendments, a number of environmental NGOs and interested parties remain concerned about possible environmental regression. The Bill moves to the Report Stage from 20 October 2025.

Recently, the Government has confirmed that in most cases it will be the Secretary of State for Defra who will “make” EDPs. Previously it was thought that the Secretary of State responsible for “making” EDPs would be the Secretary of State for MHCLG.

The Government is planning to secure Royal Assent on the amended Bill in November 2025.

If you would like to watch Penny and Richard’s webinar on the proposed amendments, please click here.

OEP responds to Offshore Wind Compensation Consultation

The OEP has welcomed the Government’s consultation on Offshore Wind compensation reforms, recognising the proposals as a positive step towards tackling the joint nature and climate crises, as well as meeting statutory targets under the Environmental Improvement Plan and the UK’s net zero ambitions.

However, the OEP’s response also highlighted several concerns – many of which echo points raised in its earlier feedback on the Marine Recovery Fund consultation (covered in our previous blog: Environmental Law Update | September 2025 | Freeths) These include:

• The need for clear guidance
• Calls for greater clarity around the concept of “additionality”
• A request for the Government to consider how compensation measures can be delivered to ensure that Marine Protected Area commitments are fully met

The full response can be seen here.

Biodiversity Beyond National Jurisdiction Bill launched

The Government has introduced the Biodiversity Beyond National Jurisdiction Bill which aims to ratify the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction under the United Nations Convention on the Law of the Sea.

The agreement aims to address four key areas:

• Equitable sharing of benefits derived from marine genetic resources
• International cooperation and oversight in establishing Marine Protected Areas and other “area-based management tools”
• Environmental impact assessments
• Capacity-building and the transfer of marine technology

The UK is among the 145 signatories to the agreement. With 63 countries having now ratified it, the threshold for entry into force has been met, allowing the agreement to become legally binding.

SuDS: Uncertainty around implementation of Schedule 3 of the Flood and Water Management Act 2010

Following years of uncertainty surrounding the implementation of Schedule 3 of the Flood and Water Management Act 2010, recent Ministerial correspondence suggests a potential shift away from commencing the legislation.

Schedule 3 would establish a statutory framework for approving and adopting sustainable drainage systems (“SuDS”) in England, requiring drainage-related construction to be approved by SuDS Approving Bodies. However, in response to written parliamentary questions on 8 September 2025, Government indicated it may instead continue to deliver SuDS through the planning system, with a final decision expected “in the coming months.”