On 11 January 2022, the Government published a
consultation in respect of the draft Regulations to secure a net gain in biodiversity, along with the implementation of such Regulations. These Regulations will execute the provisions within the Environment Act, enacted in November 2021, which make it a requirement for planning authorities to make every permission (with limited exceptions) subject to a condition requiring a biodiversity gain plan to be approved by the planning authority, before the commencement of development.
In short, the Environment Act sets out that the biodiversity gain plan should include an assessment of; (1) the pre-development biodiversity value of the development site; (2) its post-development value along with any registered offsite biodiversity gain allocated to the development, and; (3) the biodiversity value of any biodiversity credits that have been purchased. Having carried out this assessment, it is a requirement that the plan demonstrates the biodiversity gain objective is met, which is that at least a 10% net gain in biodiversity has been achieved.
Whilst the Environment Act introduced these measures, they do not come into force until a date that Secretary of State sets out within separate Regulations, being those that are currently a subject of this consultation. The consultation confirms that the provision in the Environment Act will come into force two years from its enactment (i.e. in November 2023).
The consultation also provides some useful indication in respect of the details which will be set out within the Regulations, briefly summarised below:
- Developments the Government are considering to exempt from these provisions include those likely to have a minimal impact on biodiversity (examples given are street furniture or boundary walls), householder applications, creation of biodiversity gain sites, self build or custom housebuilding sites
- Developments that were previously going to be exempt but are now being considered to not be exempt are brownfield sites, temporary permissions, developments where permitted development are not applicable due to their sensitive location
- Developments taking place in a statutory designated site or involving the loss of irreplaceable habitat (such as ancient or veteran trees) will not be subject to the net gain condition as it would be impossible to calculate the loss of such habitat due to their high value. In such locations a bespoke assessment is likely to be required
- It confirms that the Government intend to take forward a simplified biodiversity metric calculation for small sites, i.e. those involving less than 10 dwellings or an area of less than 0.5 hectares
- It confirms that the Government will mandate by secondary legislation that certain biodiversity gain information must be provided with an application for planning permission as a validation requirement. This biodiversity gain information will include:
- pre-development biodiversity value
- steps taken to minimise biodiversity impacts
- proposed approach to enhancing biodiversity on-site, and
- proposed off-site biodiversity (including credits) that has been planned or arranged
- The biodiversity gain information will need to be supplemented by the biodiversity net gain plan prior to commencement of development, which the local authority should only approve when it demonstrates a measurable net gain of at least 10%
- Preference is that net gain will be demonstrated on-site, but the consultation confirms that developers will be able to deliver off-site biodiversity enhancements on other landholdings or purchase biodiversity units on the market from other landowners (which should be as near to the site as possible)
- To count towards a development’s net gain requirement, off-site biodiversity gains will need to be secured through a conservation covenant or planning obligation and registered prior to formal approval of the biodiversity gain plan
- Developers or landowners will be able to enhance the biodiversity value of sites to sell credits on a market. Local authorities will be able to sell biodiversity units on their own land or act as a broker for third party units, but in doing so they will need to manage any conflicts of interest
- The Government are considering allowing developers to sell off the net gains above the statutory requirements as off-site credits for another development. To ensure additionality, the excess gains should be distinct from those necessary to meet the biodiversity net gain requirements for the original development or to make the original planning application acceptable in planning terms
Developers and their ecological consultants may wish to comment on these proposals. The team at DMH Stallard would be happy to discuss any of the aspects set out above in more detail. The Government are asking for responses in respect of this consultation to be submitted by 5 April 2022.