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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
United Kingdom | Publication | May 2023
The Department for Environment, Food and Rural Affairs (Defra) has recently published guidance on what can count towards a development's mandatory biodiversity net gain (BNG) in England (the BNG Guidance). The BNG Guidance contains a strategy to develop land in a way that contributes to the recovery of nature.
Background
Net environmental gain is a principle for development set out in ‘A Green Future’, the UK government’s 25-year plan to improve the environment. In this plan, the government proposed expanding current BNG approaches to achieve wider natural capital benefits, including flood protection, improved water quality and improved air quality.
Generally, the aim of the BNG Guidance is to ensure a new development's impact on the environment is positive by delivering improvements through habitat creation or enhancement and mitigating as far as possible potential harm.
In February 2023, Defra published the government’s response to its 2022 consultation on BNG regulations and implementation together with some guidance. In March 2023, Defra confirmed that a mandatory 10% minimum BNG requirement will apply to all new planning applications under the planning regime in England that result in loss or degradation of habitat from November 2023 (with some exceptions). Defra has not yet published the draft regulations.
What does the BNG Guidance say?
The BNG Guidance explains that if a developer is creating or enhancing habitat as part of its development, this may count towards its BNG. This will apply even if the habitat being created or enhanced as part of the development is to:
Off-site mitigation and compensation for protected sites and species may also count towards BNG (although it is notable that off-site units must be legally secure for at least 30 years, and registered, before they can count towards BNG). However, at least 10% of BNG should be achieved through other activities, for example, on-site habitat creation and enhancement.
Developers should also note that habitat creation or enhancements do not count towards BNG if required for restocking conditions relating to a tree-felling licence, marine licence, or remediation under the environmental damage regime.
Summary
The BNG Guidance will support housing and infrastructure development that delivers measurable environmental improvement and nature-based solutions to climate change without increasing the overall burdens on developers.
If you would like any further information about BNG and how it may impact future housing and infrastructure developments, please do get in touch with the Environment, Safety & Planning team.
Video
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
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After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
Publication
On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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