22 Nov 2021 The Environment Act and Biodiversity Gain – Key points and next steps
In this article we take a look at the new Environment Act and the implications of biodiversity gain as a forthcoming legal requirement, focusing on the latest developments in legislation and policy and the remaining uncertainties. The article also discusses the anticipated response of local planning authorities, as decision makers for development in England.
The new measures and the transition period
The Environment Bill received Royal Assent in November 2021, becoming the Environment Act; this includes the provision of biodiversity gain for developments in England, which will be mandated through an amendment to the Town and Country Planning Act 1990. The two-year transition period that follows Royal Assent means that mandatory biodiversity gain will become law in autumn 2023.
While a transition period may seem unusual, this will allow for time needed for several of the mandatory requirements to be put in place. The ‘get ready’ phase is intended to help all interested parties prepare: developers, local planning authorities, professional ecologists and crucially landowners for the supply of land and the new credits market.
The Act will require:
- The provision of a required percentage of biodiversity gain, currently set nationally at 10%
- The use of the national Defra Biodiversity Metric to calculate the biodiversity gain; currently Metric 3.0 applies
- The provision of a biodiversity gain plan to demonstrate how biodiversity gain will be delivered on and or off-site; statutory instruments and regulations are in preparation by Defra and Natural England to provide templates for reporting
- Biodiversity gain to be secured for a fixed period, currently nationally set at 30 years
- Demonstration of how the biodiversity gain will be secured; conservation covenants, which are in preparation by Defra and Natural England, will provide the means of delivery
- A national register of land used for biodiversity gain to be established; this will involve setting up a new biodiversity credits market, the approach for which is in preparation by Defra and Natural England
- Local Nature Recovery Strategies (LNRS) are to be prepared to provide full geographic coverage across England. The Government has indicated that there will be ‘roughly 50’ LNRS to be prepared by ‘responsible’ authorities and it is not yet known how the boundaries will be drawn up.
Where the term ‘current’ is used for requirements within the Environment Act, it means that the Government has the power to change the threshold for these provisions through future regulation. For example, in future it may be that the 10% threshold is changed, or that the 30-year period may change subject to Government review of the success of habitat creation and enhancement.
Is biodiversity gain required for developments now?
The simple answer is yes, for the following reasons. The national policy basis for biodiversity (net) gain is already established in the National Planning Policy Framework (NPPF) for plans and planning applications (paragraphs 179 and 180 respectively). Some local planning authorities already have biodiversity (net) gain policies in their Local Plans; others do not yet. In our experience, however, many local planning authorities are already requesting a biodiversity gain assessment, including the use of the Defra biodiversity metric, whether they have a Local Plan policy or not, in which case they may rely on the NPPF policies only.
During the two-year transition period before biodiversity gain becomes mandatory, local planning authorities are expected to increasingly request the measures set out within the Environment Act as part of their development decision making process. This means that it is sensible to address biodiversity gain requirements early in the pre-planning application and design stages of a development. It is essential to ensure that what is proposed when a planning application is submitted is achievable and deliverable once the development is consented to avoid future planning issues.
Developers and landowners: be aware of what’s coming next
- That you check GOV.UK for consultations on future biodiversity gain regulations and statutory instruments so that you can make a representation if it will affect your development or your land.
- You ensure that you are aware of the emerging LNRS and the mapping they contain for suitable geographic locations for biodiversity.
The strategy proposals may overlap with your land, your future allocation in the Local Plan and/or help to provide you with an opportunity to deliver biodiversity gain as part of your development.
Please contact us if you would like to discuss the implications of biodiversity gain on a specific project.