Biodiversity Net Gain and the Lawton principles: are we at risk of failing to deliver the best outcomes?

Biodiversity Net Gain and the Lawton principles: are we at risk of failing to deliver the best outcomes?

The Chartered Institute of Ecology and Environmental Management (CIEEM) Spring Conference 2022 was on the subject of “Taking Biodiversity Net Gain from Theory to Practice.”

The keynote address, delivered by Dr Peter Shepherd, Director at BSG Ecology, set out how biodiversity gain has evolved, and what the driving ambitions were (are) that have brought us to where we are today. It also aimed to pose some challenging questions about whether we are delivering against the original ambitions, diluting or losing sight of them through our developing approach, and whether this is likely to make measurable nature recovery more difficult to achieve.

This article is based on the address given by Peter at the conference, and brings together some of his thoughts and opinions.

History of Biodiversity Net Gain

Biodiversity net gain alongside the changes in thinking on biodiversity captured in the 25 Year Environment Plan, the Environment Act 2021 and most recently the Nature Recovery Green Paper represents the most significant change in our approach to biodiversity conservation since the Wildlife and Countryside Act.

While discussion about the effectiveness of mitigation and biodiversity offsetting had been around for some time prior to biodiversity net gain (and its precedent ‘biodiversity offsetting’) reaching the mainstream, the first time the concept was set out in a key document was in 2010 (The Lawton Review).

The government’s response to this was the 2011 Natural Environment White Paper. A couple of interesting comments made by the government at that time are worth revisiting:

It [biodiversity offsetting] could safeguard biodiversity more effectively, for example, by encouraging the pooling of resources to achieve higher quality compensation.

and;

Offsets should help to expand and restore the ecological network in England. Used in a strategic way they can help to deliver more, better, bigger and joined up networks of habitat.

These ambitions are the right ones and we should not lose sight of them.

What has Biodiversity Net Gain achieved to date, and what could it help achieve?

A great deal of work has gone into biodiversity net gain since the original trials back in 2012. One significant step forward has been reaching the point where politicians and developers recognise and accept the policy of restoring a minimum of 110% of the biodiversity value of sites subject to change driven by development. However, we now need to refocus on ensuring restoration is effective in delivering nature recovery in England. We also need to critically assess whether we are making life too hard for ourselves and not being sufficiently strategic or ambitious.

Compared to EIA, which focusses on valued ecological receptors, net gain takes a more rounded look at impacts on all aspects of biodiversity, including common and widespread habitats as well as those that are rare or highly valued. It also provides a more objective account of change in biodiversity value; however, the risk is that the metric becomes the focus of attention and debate in the planning process rather than time being spent thinking creatively about the benefits we can deliver through net gain.

Mandatory biodiversity net gain is also a mechanism that should generate significant levels of regular and much needed revenue for habitat restoration/creation, and it is one of the new mechanisms that should make a significant contribution to strategic nature recovery at scale. This is something very new, but how much money will be generated for off-site works and how easy will it be to spend on the right projects in the right places?

The Nature Recovery Network

The focus of the Nature Recovery Network in Oxfordshire (where I am based) will be very familiar to veterans of ecological work in Oxfordshire; the core of this network first appeared as Conservation Target Areas initially selected in 2006. Across many counties there are similar initiatives including Biodiversity Opportunity Areas, Nature Conservation Strategies and Heathland Strategies.

We can therefore build on existing strategic plans and documents; as ever we stand on the shoulders of giants who came before us. What we have historically not been good at, however, is effective implementation, with the key challenges being money, land and long term management. We must not fail to deliver again, and net gain potentially provides an answer to one of our historic challenges – a significant revenue stream.

The other great challenge is land. Tony Juniper Chair of Natural England in his blog post of 16th March 2022 said:

My logic follows the simple observation that if we don’t do Nature recovery in particular places, then we won’t do Nature recovery, so having that place-making capability to bring all the tools together is vital.

This is not a controversial statement. If we do habitat creation in the wrong way in the wrong places then the success of nature recovery will be hindered. The crucial role of nature recovery strategies is in defining these places.

Exploring the challenges in effective Biodiversity Gain Delivery

We are in exciting new times. The recognition of the importance of the environment and the need for nature recovery has never been more established and widespread across society.

The successful delivery of biodiversity net gain will be greatly influenced by a number of key issues. These include the availability and long term control of land, rules that favour onsite over offsite habitat creation/enhancement, and associated penalties that are being built into the net gain metric and guidance concerning offsite delivery.

Two key questions are:

  • Will these rules deliver the best strategic outcomes for biodiversity?
  • How will we direct revenue to the delivery of nature recovery at scale in the right places.

In answering these questions some of the key challenges that I see are:

  • External factors. We are currently going through a desperate war in Europe, which will have implications for food and energy security. These and other external factors will be used to make the case for rowing back on environmental targets. We cannot afford to go backwards, we cannot slow the rate of progress.
  • Land availability. Effective net gain policy is dependent upon the right land becoming available in the right location at the right time. How do you encourage landowners to change land use? This is not ultimately in our control.
  • Maximising revenue for nature recovery. Our aspirations are currently dependent upon private landowners, and land availability, delivered through a market that is expected to develop, with habitat bank providers offering the most competitive prices to attract net gain payments. However, there are competing demands on land and competing options for landowners. Is it better to go with a short term more flexible, less onerous Environmental Land Management Scheme (ELMS) payments, carbon capture or ecosystem payment schemes?

In summary, we can lever as much money as we like from development with 10, 20 or 25% net gain targets, but if we do not have the land in the right place and the mechanism to deliver new habitat we will fail our ambition for nature recovery.

The Net Gain legacy?

Net Gain is required to be maintained for 30 years. The unspoken suggestion of the Environment Act Regulations seem to be that after 30 years the habitats created will be so valuable they cannot be easily reverted to an alternative land use. Currently there is no mechanism to enforce continued maintenance of net gain habitats after 30 years, so this remains an assumption.

If the assumption is correct, however, what will happen to land supply when landowners realise they are not really signing up for 30 years payments but in perpetuity? Will we need to increase payments to increase uptake?

Conversely, if we cannot reasonably guarantee that created habitats won’t be able to change land use after 30 years, can we, indeed should we, set a target for the proportion of net gain land that has to be maintained in perpetuity? If so will the organisations set up to do this be able to take on that commitment?

I would conclude that incentivizing long term or permanent projects should form the backbone of any nature recovery strategy.

Restrictive Rules, Disincentives and Other Complications

Rewarding schemes that address loss of biodiversity value on site or as near to site as possible over those that contribute to projects further afield is a key concern of mine. How does this promote strategic delivery of net gain in the right places? It will clearly reduce the amount of money available to at-scale off-site projects and a high proportion of net gain will not necessarily be captured on the national register as it will be delivered within a project red line.

I understand the thinking is to ensure biodiversity is evenly distributed and there are societal benefits of access to nature, but good design and high standards of green infrastructure provision can surely address these in large part. A determined drive to squeeze all of the 10% net gain target into a particular redline or next door to it is not the answer. The recently published guide from the RTPI on design codes indicates how urban design can result in development that delivers everyday contact with nature.

How the effectiveness of biodiversity net gain in facilitating nature recovery will be critically evaluated is another concern. The Environment Act will require net gain payments to be allocated to a named specific project in advance of planning consent or start of development. Those sites will need to be approved on a national register. How, when and by whom will that list be assessed to determine what contribution it is making to nature recovery networks.

A further complication concerns the inability to pool payments to build up sufficient funds to support major, at-scale, strategic projects. This is likely to result in small payments being made to fund small projects or a desire to force all the net gain into the red or blue line of a development. This may delay or even prevent funding being available for large scale projects. A landowner may not wish to start a project without the full funding secured and a developer may not wish to be dependent upon additional funding being found before they can start their development.

Net gain should actively incentivize habitat creation in the best places to create the bigger, better and better connected vision set out by Lawton. I fear we may not be doing this and the process we have set up may even actively work against it. If we are to be strategic and drive habitat creation in the right places, the lack of strong incentives to do so is not helping. Strategically important habitat creation projects, the ‘bigger’ element of the Lawton landscape, should be incentivised as opposed to penalized by the Metric. I hope this can be addressed by local authorities developing local policies for regionally important, at-scale, net gain projects.

One Size doesn’t Fit All

The net gain metric approach embodied in DEFRA 3.0 has been designed for permanent new development (e.g. housing), but it does not work well for temporary land use with operational decommissioning and restoration stages. In particular it doesn’t work well for mineral sites.

The minerals industry, arguably more than any other, has created more high quality habitat in this country than any other land use/industry in the last 60 years. To boot it does it at scale. The application of the metric to such an important industry that will make a massive contribution to nature recovery needs a rethink to ensure that net gain policy and practice does not penalize or disincentivize the mineral industry from delivering major contributions to nature recovery.

Conclusion: Ambition is Critical

Tony Juniper says in a recent blog post:

On both land and sea, it seems to me that a major determination of our overall success for Nature recovery will be down to the effective delivery of the multiplicity of policies and targets in particular places, and to do that in common cause with the many interests working and living in those places.

This is good stuff from the chair of Natural England, but it is necessarily framed within the realities of the current way we traditionally do land use change – “multiple policies and targets” and “finding common cause with many interests”. This is how we have always done nature conservation in this country, but as the State of Nature Reports clearly show us, despite all the great work done over the last 70 years this way of working has resulted in a continuing decline in biodiversity. We are in a new era of thinking and policy, yet fundamentally we are trying to deliver practical outcomes in the same strait jacket we always have. For the really important moves I don’t think it is enough and a different, bolder approach is required. We are continuing to fall on the wrong side of regulation versus influencing and incentivizing? We need both, but we need a better balance.

Nature recovery must be put on a par with the other vital infrastructure of this country – roads, power stations, ports and dare I mention it – fast train systems. Why we are being so shy at a time of major change and when everyone agrees there is an urgent need to move quickly? It is time our industry started calling for government to create an environmental infrastructure commission or to reframe the existing infrastructure commission to focus the policy and thinking on green as well as grey infrastructure. Part of the remit of this commission would be to support and promote major at-scale infrastructure with a primary environmental purpose, not to simply suggest this can only be delivered on the back of roads or railways.

We are at a pivotal moment in the history of the environmental movement in this country, we have a new set of thinking (or maybe more accurately thinking that is newly mainstream) and a policy that will generate a revenue stream that we could not even dream of 30 years ago. It is a huge opportunity to make the paradigm shift required to recover nature so let’s not waste this opportunity by tying ourselves in knots over process and systems that we find work against the most effective delivery of nature recovery and which stunt our ambition and effectiveness.

Dr Peter Shepherd

March 2022

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