The Government’s Environment Bill (Bill), which was reintroduced to Parliament in January this year, introduces a mandatory requirement for Biodiversity Net Gain (BNG) in the planning system. The National Planning Policy Framework 2019 already requires local planning authorities to seek to minimise impacts on biodiversity and provide net gains where possible, but there is currently no standardised approach.
The principle of BNG forms part of the government’s ’25 Year Plan to Improve the Environment’ with an aim to leave the natural environment in a measurably better state than beforehand. The new Bill will require developers (subject to limited exceptions) to provide a mandatory 10% BNG, compared against a pre-development baseline, in respect of all new development under the Town and Country Planning Act 1990 (TCPA 1990), that results in the loss or degradation of habitat.
The Bill proposes to introduce a new Schedule to the TCPA 1990, which requires applicants, as part of their planning application, to gain approval from the local authority of a ‘biodiversity gain plan’. This plan must include, amongst other matters, information about steps to minimise the adverse effect of the development on biodiversity and details of the pre-development and post-development biodiversity value of the onsite habitat.
In order to measure biodiversity value for the purposes of a planning application, a metric produced by DEFRA, which scores different habitat types according to a predetermined biodiversity value, will be used. This value is then adjusted depending on the condition and the location of the habitat. The predicted biodiversity gain is then calculated in the same way, adding-in new biodiversity elements and new components relating to risks associated to the development.
The NFU, in its response to the Government’s consultation on BNG, has raised concern with the use of a metric, in isolation, in relation to the pre-development baseline and agricultural land. Specifically that ‘normal farm business decisions around cropping on land should not be deemed intentional degradation of habitat’ and ‘Farmers who are already delivering good environmental outputs should not be penalised by the way the metric is applied’. The Government is expected to provide and consult on guidance to assist stakeholders, and we hope that this point is carefully considered.
Under the Bill, developers will have to guarantee to maintain biodiversity gains for a period of at least 30 years and longer-term protection will be encouraged, provided it is acceptable to the landowner. It is proposed that developers will sign up to conditions or obligations, or the landowner will be required to enter into legally binding ‘conservation covenants’, designed to give assurance that compensatory habitats will be maintained, in order to promote nature conservation.
If a developer is unable to mitigate biodiversity net loss on-site, it will be required to pay a cash tariff on the shortfall against net gain obligations. Whilst the thought is that meeting this gain by off-site provision should be a last resort, in practice a 10% gain may be difficult to achieve on some sites and this should be recognised. Under the proposals, this payment should ideally go towards local off-site projects, but if these are not available, then the developer may be able to buy ‘biodiversity units’ provided by the Government.
Whilst we await clarification from the Government on detail as to how a system of biodiversity credits will operate, it is possible that with such a system, there is potential for farmers to deliver the net gain, by the provision of biodiversity units on their land, which they could sell to those developments, which are unable to deliver on-site provision. If a system of biodiversity credits is to operate successfully for farmers, payment undoubtedly needs to offer incentive and funds must be available for the duration of the contract, for the unit to be managed effectively for nature conservation.
Whilst there is not yet a date that BNG will become a national mandatory requirement and further guidance is awaited from the Government, a number of local authorities have already updated planning documents. For example, since 1 March 2020, Cornwall Council has been applying a 10% net gain requirement to all major planning applications. At the time of writing, they are still working on proposals in relation to the position where off-site compensation is appropriate.
The Environment Bill is now being considered by a Public Bill Committee and is expected to report to the House of Commons by Tuesday 5 May 2020.
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