Biodiversity Net Gain and the Environment Bill. Where we are now?

Biodiversity net-gain has been lurking around the peripheries of planning and environmental protection for some time. However, with the Environment Bill continuing its journey through parliament this autumn, the concept is finally set to become law.

Although technically complicated to calibrate, the idea of net gain is straightforward to understand: any development should leave the natural environment in a measurably better state than before. This can be achieved directly through habitat creation and enhancement or by mitigating harm. It can also be achieved indirectly through more complex tools such as biodiversity credits and conservation covenants. References to ‘biodiversity enhancement’ already features in the National Planning Policy Framework, (February 2019), government Planning Guidance Natural Environment (21 July 2019) and even some Local Plans. However it is only following a Defra consultation (December 2018) that biodiversity net gain is finally being formally introduced into the planning system through the Environment Bill 2019-21 (“the Bill”).

How then will it work? Clause 90 of the Bill introduces Schedule 14 which amends the Town and Country Planning Act 1990 such that it will become mandatory for developers to provide 10% biodiversity net gain in respect of any new development that results in habitat loss or degradation. The way in which this will fit into the nuts and bolts of the planning process is provided for in Part 6 of the Bill, which sets out a new general condition to be applied to all planning permissions in England. This condition requires that - before commencing development - the developer will need to submit a biodiversity net gain plan to the local planning authority for their approval. The local planning authority can only approve the Plan if the ‘biodiversity value’ attributable to the development is greater than the ‘pre-development biodiversity value’ of the onsite habitat by at least 10%. This “biodiversity gain objective” will need to be calculated by reference to the government’s biodiversity calculator (currently the “Biodiversity Metric 2.0”). The concept of net-gain may be straightforward, but the means by which it will be measured is both technically complex and evolving. Developers and local authorities will need to pay close attention to the emerging guidance.

Where then should this 10% happen, and how long must the site be retained? It is the government’s intention that it should be on-site or local if possible (something incentivised by the biodiversity metric). However, if there are no suitable local projects, developers can invest in nationally strategic habitats though a system of ‘statutory biodiversity units’ (as yet to be fully elucidated). In terms of timeframe, in order to ensure that that any gains secured are retained, any outcomes delivered must be maintained for a minimum of 30 years. Landowners would be able to change the use of the land set aside for habitat improvement at the end of the 30-year period, however the target habitat condition of the site would be the biodiversity baseline for any future development.

As would be expected, there are exceptions to the net gain requirement. These will be set out in secondary legislation, but are likely to include a permitted development, householder applications, residential self-build and brownfield sites. Three other notable exceptions are Nationally Significant Infrastructure Projects (NSIPs), marine development and irreplaceable habitat (such as ancient woodland), which will most likely be dealt with under separate legislation. As well as exceptions, there will also be some adaptations for smaller sites (e.g. a lower net gain requirement and simplified assessment). Where sites contain no meaningful habitat (for example some urban brownfield) they won’t be required to deliver compensatory habitats, but may be required to incorporate some green infrastructure.

However, even before the Bill becomes law, there are already reasons to expect further changes ahead. The Natural Capital Committee (April 2020) has advised that it is environmental rather than biodiversity net gain which will delivery net-zero targets of greenhouse gas emissions, as this is the only approach that fully considers the impact on the terrestrial and marine ecosystems. Although this was not taken forward in the current Bill, the government has stated its intention to develop future approaches that take account of other forms of natural capital.

However, in terms of this Bill, attention should still be paid, as much of interest remains to be resolved in the final details of the text and secondary legislation that follows. At the time of writing it has reached the stage of Public Bill Committee, scheduled to report by Tuesday 29 September 2020, and its progress through parliament and any final changes, should be watched closely

Posted on: 19/08/2020

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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