11 Mar 2022 DEFRA consultation on biodiversity net gain requirements
The provisions for biodiversity gain in the Environment Act will come into force in November 2023. During the transition period between now and November 2023 the Government is consulting on how their overarching biodiversity gain objective in the Act will be met. The biodiversity gain objective states:
‘The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage.’
As a developer, landholder or land manager you need to be aware of the responsibilities the Environment Act will bring – it will affect your developments, your timescales and your costs. DEFRA are inviting consultation on the practical and legal implementation details of the new biodiversity net gain requirement in England and how it will work in practice advising that ‘Your responses will shape developing legislation, processes and guidance. This will help ensure the requirement for mandatory biodiversity net gain delivers positive outcomes for nature, improves the process for developers, and creates better places for local communities.’
Key points from the consultation
The provisions in the Act set out how the Government intends development in England to meet this objective – how much biodiversity gain is acceptable, where it can be sited, how it will be measured through the use of a metric, how the pre-development baseline will be agreed and how biodiversity gain will be legally secured for 30 years. Key requirements and considerations in the consultation are summarised below:
- There will be a new pre-commencement condition through a revision to the Town and Country Planning Act 1990; there are questions regarding the planning process and the implications of this condition.
- A key part of the pre-commencement condition will be to supply a biodiversity gain plan; the regulations consultation document includes a draft basic ‘legal minimum’ template for review.
- The national threshold is to be set at 10% through the Act although the Act and the consultation document makes it clear that local planning authorities have the freedom to set their own higher threshold at a Local Plan policy level.
- The national metric has already been issued, currently the version is 3.0; there is likely to be a further consultation on the metric in due course.
- There will be a new national register for offsite biodiversity gain land; developers cannot assume that their own land will be acceptable unless it is located in a place that delivers a strategic benefit for biodiversity. There will be an application process to go through it you need to register offsite land for which there will be a charge and it may be refused. There will be an appeals process. Determination periods will be set for new applications and appeals – currently proposed to be 28 days each.
- In conjunction with the new register, there will be new Local Nature Recovery Strategies (LNRs) that will spatially represent where biodiversity gain provisions are best placed to deliver the best outcomes for biodiversity. There will be approximately 50 LNRS to provide complete coverage across England which is broadly around the number of English counties there are. It is not certain how this will fit in with National Park Authorities for example.
- To secure the delivery, Conservation Covenants will be available as well as section 106 obligations.
- Responsible bodies for the delivery of biodiversity gain on the ground can now include ‘for profit’ bodies which could be helpful when deciding whether to register your own land.
- There will be new duties and responsibilities for local planning authorities too and it is important that information supplied to them helps the process so that the risk of delays to development are reduced as far as possible.
If the Act affects you, making a contribution to Defra at this stage is both helpful and constructive. BSG Ecology will be providing a response to the consultation and is active in ongoing Defra workshops regarding the consultation in principle and more specifically, the requirements of the biodiversity gain plan. The current consultation applies to development under the Town and Country Planning Act 1990 as well as Nationally Significant Infrastructure Projects. The deadline for comments is 5 April 2022.
Please contact us if you would like to discuss the implications of biodiversity gain on a specific project.