17 May 2016 Biodiversity offsetting – a way forward for a Lawton Levy?
BSG Ecology recently attended two events in London focussing on biodiversity, planning and the environment. There are many changes taking place in this area of our work and these events proved useful in keeping us up to date on current thinking and practice and on potential future changes to how biodiversity is addressed through the planning system. They also closely followed on from the publication of the findings of the Defra consultation on biodiversity offsetting in England released in February 2016 (further to the Green Paper published in 2013) and it was a good opportunity to see how the results of the review were influencing current thinking, if at all.
The RTPI Conference on Planning for Biodiversity and the Natural Environment was largely attended by local planning authorities and provided a good review and insight into current and future issues including biodiversity and planning and climate change, ecosystem services and natural capital and biodiversity offsetting and no net loss. It did not delve too deeply into biodiversity offsetting, but did consider how the current Government NPPF policy on ‘no net loss’ and ‘achieving a net gain where possible’ are being addressed through the planning system.
At the Westminster Energy, Environment & Transport Forum seminar entitled The future for policy on biodiversity and natural capital in the UK: priorities, practicalities and targets there was more discussion about biodiversity offsetting although there was a notable shift away from the use of the term ‘biodiversity offsetting’ which has ‘become toxic due to a few individuals’ according to Professor David Hill (Deputy Chair, Natural England and Chairman, owner and founder of Environment Bank). Professor Hill suggested that the preferred term is now ‘biodiversity compensation’, which provides a useful direct link back to the mitigation hierarchy of ‘avoid, mitigate, compensate’ that Government policy promotes in dealing with harm to biodiversity interests.
David Lowe (Principal Ecologist, Warwickshire County Council) provided an overview of how local planning authorities have responded to biodiversity offsetting since the Defra pilot study ended. To date, uptake of formal offsetting schemes has been low. This is perhaps unsurprising given the time taken to publish the review of the responses to the Defra Green Paper (over two years) and the lack of any further guidance or opinion from Defra on whether the Government intends to support a Biodiversity Offsetting/compensation scheme approach and enshrine it in policy or not. It may also reflect the 2016 findings of the Defra consultation on biodiversity offsetting, which reported a mixed view to the Green Paper with roughly half of all respondents saying that a biodiversity offsetting scheme should not be introduced in England and 63% of respondents expressing concerns regarding the current scheme being put forward through the Defra pilot study.
Notwithstanding the current lack of clarity from the Government, Professor Hill cited that twenty five of 380 principal local planning authorities are in the process of adopting biodiversity compensation schemes. There is clearly a need for greater clarity on biodiversity offsetting/compensation if a widely accepted, consistent and coherent approach is to be established across England. It is also important that any such scheme needs to be clear in its purpose and operation to planning authorities and the development sector and how it will deliver positive benefits for biodiversity i.e. helping to achieve no net loss and increasingly a net gain that will contribute to realising the objectives of the Lawton Review (an independent study commissioned by the UK Government in 2009).
Professor Hill also suggested that there is a need for greater guidance and clarity and asked that the Government give consideration to a 6 point plan which includes a 1% payment rule to be applied to all land development. This rule, which he advised was not a tax, should be applied to developers where ‘everything to do with the use of land should involve payment for biodiversity’ and he reported that in his experience to date there has been no backlash from developers in making such payments. This represents a move away from the conclusions of the Defra pilot study, which indicated that biodiversity offsetting would be applied to those significant residual impacts that remained after the application of the NPPF mitigation hierarchy as opposed to being a blanket payment regardless of impact significance. However, BSG considers that it is understandable that for the Lawton Review to be successfully delivered, we need to grasp the concept of bigger, better and more joined up, and that compensation for losses that would otherwise occur will not achieve this. Local planning authorities seeking to deliver net gain for biodiversity rather than no net loss could potentially invite developer contributions to be made where there is little significant existing biodiversity interest but enhancement and restoration is a priority within the landscape.
A biodiversity compensation scheme could potentially achieve both biodiversity benefits and simplify the planning process for developers, but this will only be realised in a coherent and consistent manner if Government provides clear guidance on how this should work. BSG Ecology wrote to Defra earlier this year urging progress and asking for clarification, and we support Professor Hill’s call for action. However, there are a number of key issues that remain unresolved, not least conflict with the Environmental Impacts Assessment (EIA) process and valuation of ecological assets, and the mechanism by which any payments are made and managed and how these relate to the Community Infrastructure Levy. Professor Hill’s six point plan also seems to introduce a new approach – a flat rate charge or levy (a Lawton Levy perhaps?). This may be one way of addressing problems of costs all falling at the end of the planning process and may help remove conflicts with the EIA process, but it does raise a number of questions. Primarily, given the proposal is a financial levy on development, it would make a great deal of sense to seek the views and support of the development sector, which may want to see this additional cost bringing benefits to the planning process.
BSG is currently working with a number of local authorities informally regarding the development and incorporation of proportionate and reasonable compensation policies into their respective Local Plans. We are continuing our work with selected housebuilder clients to take forward and deliver proportionate compensation schemes on the ground where they encounter the local policy requirement in line with the NPPF and the delivery of the mitigation hierarchy. If you wish to discuss your experience with biodiversity offsetting or biodiversity compensation requirements, please contact Kirsty Kirkham or Dr Peter Shepherd and we will be happy to talk through the opportunities and to identify a realistic approach that can be adopted to enable sustainable development to proceed.
 At present, there is no formal requirement for the introduction of biodiversity offsetting policy within the planning system. Local authorities are individually considering their options for the inclusion of policies in Local Plans drawing on the experience of the Defra pilot study and whether they consider it would work for them.
Total considered likely to be derived from England and Wales local planning authorities (county, district and unitary). The Local Government Information Unit cites 375 principal councils in England and Wales. http://www.lgiu.org.uk/local-government-facts-and-figures/#how-many-councils-are-there
 In summary, the Lawton Review looked at the network of English wildlife sites, to consider whether they represent a coherent and robust ecological network capable of responding and adapting to the growing challenges of climate change and other demands on our land. The resulting report included recommendations on how to better protect and manage our wildlife sites (statutory and non statutory), provide for restoration of habitats and promote a step change to halt biodiversity loss and deliver effective nature conservation in England. A key recommendation was to provide bigger, better and more joined up nature conservation areas. There are opportunities to take forward the Lawton Review recommendations through effective implementation of the land use policies in the NPPF relating to conserving and enhancing the natural environment. The Defra biodiversity offsetting pilot study aimed to streamline the biodiversity compensation process as required by the NPPF using a cost effective approach.