Ecology Planning – Biodiversity Net Gain

As the emerging Environment Bill, scheduled to be published later this year, gathers pace, central Government’s response to Defra’s consultation on the prospect of introducing compulsory biodiversity net gain in new developments has outlined the key changes for developers and authorities.

In its report published late last month, Defra confirmed a commitment to a legal framework for biodiversity net gain – notionally, the quantifiable improvement of habitats and species – to be secured in all new development considered under the planning system in England and Wales. The key areas covered include the types of development affected, the hierarchy of species and habitats, and how to measure and monitor net gain effectively.

Notably, the report rejected the prospect of exempting certain kinds of development outright, although marine development and nationally significant infrastructure projects have been placed outside the scope of the Bill pending further research.

Support is indicated in principle for simplification and transitional arrangements – which may include an initial lower rate of net gain – to allow smaller-scale development to adapt to the changes, as well as an exemption for brownfield sites where these encounter demonstrable viability issues as a result of the requirements.

It also sets out a predictable sequence for prioritising where net gain should be focused. Ideally this should be on the site itself, the report states, but if this is not possible it may instead be directed to the local area and surrounding networks. Finally, if neither of these options are available, developers may purchase “biodiversity units” to fund “nationally strategic habitats”, in the creation of which local authorities are expected to be instrumental.

Chris Marsh, Senior Planner at Evans Jones, comments as follows:

“The publication of the Government’s response to the earlier consultation undertaken by Defra represents the next milestone in the long-running machinations toward a nationwide requirement for biodiversity net gain within the planning system. Whereas current standards vary from authority to authority, it is clear that with the forthcoming Environment Bill, Government expects to deliver a uniform system that is reasonably easy to understand.

Settling on a hard and fast minimum level of 10% increase in biodiversity net gain – a subject naturally very difficult to quantify – will also have raised eyebrows, as much in terms of its actual measurement and administration as the principle itself. Currently authorities including Warwickshire County Council are piloting complex matrices to quantify current ecological resources, but such ‘scoring’ systems will always have their limitations and may not necessarily achieve the best outcomes for local biodiversity.

To critics, the fall-back on a ‘credit’ system of biodiversity where improvements cannot be provided on site/locally may appear to be a cop-out. However, it should be noted that these will not allow biodiversity harm to be ‘bought’ (per the carbon credit system) but rather they allow developers to compensate for a lack of local gains. Furthermore, the likely eye-watering costs associated with this approach mean it probably will be a genuine last resort for developers. There is also a general law of diminishing returns where improvements are ported across great distances, and it is questionable whether the resources exist to support these across the full 30-year duration being targeted; the developer’s responsibilities end when they sign the cheque, after all.

For local authorities, there are of course additional resource implications, and it is unclear whether many are properly equipped to handle the additional procedural burdens of what now looks to be a fairly resource-heavy system. Aside from considering and negotiating the impacts of development against the scope of on-site and local net gain improvements, authorities will also need to monitor implementation and compliance across a matter of decades for every single development they approve; no mean feat with an ever-diminishing supply of in-house ecological expertise.

In the immediacy, of course, virtually all – if not all – Development Plans (Local Planning Authorities’ first port of call when considering planning applications) contain policies relating to biodiversity, and many of these simply require, at a basic level, that development does not harm such resources and, if possible, delivers some nominal gain. Notwithstanding the consultation report, therefore, developers will be mindful that there remains for the time being no overriding compulsion to meet some higher standard until this is required by law.

Developers should be aware however that where schemes remain ongoing when the Environment Bill gains royal assent and the requisite provisions are triggered, they should expect to have to justify at that point what net gain is proposed with their development. Our strong advice is to start this consideration process early in the design phase to avoid expensive and time-consuming redesigns.  

It should also be emphasised that protected and priority species and habitats will continue to benefit from the same statutory protection, and the consultation was at pains to emphasise that the Environment Bill will not encroach in this regard. In terms of European legislation, however, it is more likely than not that we will see some tweaking around the edges of this when it is automatically transferred into British law at the end of October.”

If you have a question about biodiversity net gain and what it means for your development, speak to Chris or any of the planning team at Evans Jones.