17 Feb 2021 Biodiversity Gain: what is the current requirement for developers?
This article discusses the current application of biodiversity gain policy to development in England, recognising the distinction between current policy provision and forthcoming legal requirements. Although the progress of the forthcoming Environment Bill is delayed in the Parliamentary timetable until later in 2021, biodiversity gain is already a national planning policy requirement; however, expectations vary between local planning authorities. A recent planning appeal considers the relative weight that should be applied to both existing policy and to forthcoming biodiversity gain policy and legislation.
Delay to the Environment Bill
The latest delay to the draft Environment Bill suggests that it will not receive Royal Assent until autumn 2021. For biodiversity net gain (or biodiversity gain, as it is now referred to in the Bill), the subsequent two-year transition period, before the requirement for developments to deliver measurable biodiversity gain (by using a metric and achieving a target percentage) becomes mandatory in law in England, would therefore also start in autumn 2021.
Biodiversity Gain: current policy
In practice, many local planning authorities are already requesting biodiversity gain as part of their development decision making. Many already have a Local Plan policy that requires biodiversity gain. It is therefore important to be aware of what is actually required now, in terms of both policy and law, when taking forward a new development application.
The current biodiversity gain policy requirements are underpinned by the NPPF (February 2019). This states (in paragraph 170d) that planning policies and decisions should provide net gains for biodiversity. At paragraph 174b plans are required to ‘identify and pursue opportunities for securing measurable net gains for biodiversity.’ Paragraph 175d introduces the principle of measuring biodiversity gain in relation to developments, stating: ‘…opportunities to incorporate biodiversity improvements in and around developments should be encouraged, especially where this can secure measurable net gains for biodiversity.’
Since planning applications have to be determined in accordance with an up-to-date Local Plan, where Local Plans have adopted policies requiring biodiversity gain, effectively, it already has ‘mandatory’ status. If, however, a local planning authority does not have a biodiversity gain policy then reliance is simply placed on the NPPF. The NPPF is a ‘material consideration’ in determining planning applications. The NPPF requires planning policies and decisions to provide for and secure measurable biodiversity gain. The NPPF does not, however, set out how much biodiversity gain is sufficient or how it should be measured (i.e. it does not require the use of a metric or a certain percentage of biodiversity gain).
It is important, therefore, to check the Local Plan for a biodiversity gain (or biodiversity net gain) policy for a development location. If a policy exists it may state the local requirement to use a metric or stipulate a required gain percentage (such as 10%, as proposed in the draft Environment Bill).
Recent planning appeal: Brickhill St, South Caldecott
Unless the use of a metric or a specific gain percentage is stated in Local Plan policy then these are not mandatory requirements. There is recent relevant case law where Milton Keynes Council refused planning permission, partly due to a development’s failure to achieve a 10% biodiversity gain. The appeal fell down on this point as the Inspector placed greater weight on the adopted Local Plan policy, which did not require a 10% gain, rather than the forthcoming legislation, which although “a material consideration, it is not yet law”.
Preparing for Biodiversity Gain
Once enacted, the draft Environment Bill will mandate the use of a national metric (currently Defra Biodiversity Metric beta version 2.0, and 3.0 is in preparation) and the provision of 10% biodiversity gain.
Since, in preparation for these forthcoming changes, many local planning authorities are already requesting biodiversity gain it is important to clearly determine their expectations. It is also recommended that the potential implications of biodiversity gain are considered at an early stage when planning a development to avoid a potential showstopper further down the line.
How we can help
We have helped clients deliver biodiversity gain assessments since 2013 and have a thorough understanding of the policy basis for biodiversity gain in England, the application of the Defra Biodiversity Metric and other locally derived metrics, and options for delivering biodiversity gain.
If you would like to discuss the implications of biodiversity gain for your project, please contact one of our offices.