Ireja Edwards and Imogen Hylton explore the intersection of open spaces and the Environment Act 2021, in this insight from our Environmental Justice Clinic 

A key issue in pursuing environmental justice lies in reconciling environmental and social concerns. Our recent case at the Environmental Justice Law Clinic (EJLC) delved into this matter, focusing on the implications of the Environment Act 2021 for public open spaces.

With the alarming decline in biodiversity and the growing threat of climate change, governments worldwide have been urged to act. The UK has sought to respond to these growing concerns by implementing the Environment Act 2021, which operates as the UK’s new environmental governance framework. This legislation mandates the Secretary of State for Environment to establish binding biodiversity targets. This is aligned with the government’s commitment to safeguarding 30% of UK land and halting species decline, as outlined in the Environmental Improvement Plan 2023.

Under the Environment Act, public authorities have a new duty to both conserve and enhance biodiversity. In the intricate landscape of the Environment Act, a key issue surfaces: the balancing of biodiversity and public enjoyment of open spaces. Our recent case at the EJLC highlighted this challenge of balancing public enjoyment of a village green and a new wildflower scheme of a council. Open spaces serve not only as social hubs, but also as areas for activities, fostering community and promoting outdoor enjoyment. Councils must strike a balance between increasing biodiversity and encouraging public use.

Looking at the government guidance on complying with the biodiversity duty, public authorities need to consider their management of areas such as amenity spaces, parks, sports fields and public gardens. Interestingly, many of these areas are also held by public authorities on statutory trust for the public for recreational purpose. While a substantial body of case law provides guidance on the discretionary aspects of space management, a fundamental principle persists: the public must retain access to these areas, even with partial limitations. For example, part of an open space is not able be used as a car park as it is too much of a restriction on public enjoyment , an issue discussed in A-G v Southampton Corporation (1970). Also, as established in A-G v Poole Corporation [1938], if the access to the land is ancillary to the recreation duty, such as a caretaker’s residence being built to help upkeep of the space, this is within the boundaries of the Act.

With this new biodiversity duty, many councils are turning to their parks and gardens to improve the wildlife there. However, councils must find a balance between biodiversity and the public access obligations. Ways of doing this could be to maintain paths for the public and to keep some areas for the public to enjoy.

The Environmental Justice Law Clinic’s case

Our case at EJLC was prompted by a referral from the Environmental Law Foundation about a village green which was also an open space held for public benefit. The council’s pursuit of a wildflower initiative raised concerns about limiting public access. We researched the council’s biodiversity duties and duties under the Open Spaces Act 1906 and the council’s management approach.

We found the trial nature of the initiative underscored the importance of community input in achieving a balance between biodiversity and public enjoyment. Through our clinic work, we gained invaluable experience and developed research skills. We received positive feedback from our client which affirmed our success in attempting to navigate the delicate intersection of environmental justice, biodiversity, and public access.

Blog by: Ireja Edwards and Imogen Hylton

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