The Environment Bill: the greatest change in Biodiversity Legislation in a Generation

The Environment Bill: the greatest change in Biodiversity Legislation in a Generation

On 15 October 2019 the Government published the full text of the draft Environment Bill. The commitments in the Bill, which include the mandating of biodiversity net gain in relation to development, will represent the most significant change to biodiversity legislation in England since the Wildlife and Countryside Act of 1981[1].

It is vital that developers understand the implications of the measures outlined in the draft Bill: in particular there will be significant responsibilities for local planning authorities during the planning application process. This means developers will need to clearly demonstrate they can meet biodiversity net gain requirements at an early stage.

Understanding the Challenges

The existing section 40 biodiversity duty for public bodies under the Natural Environment & Rural Communities Act 2006 will be amended to include provision for biodiversity net gain (Part 6 (89) of the draft Environment Bill). Schedule 15 of the draft Bill indicates that provision for biodiversity net gain will be a general planning condition for developments in England under the Town and Country Planning Act 1990.

Part 3(1) of Schedule 15 makes it clear that planning authorities will only approve a biodiversity gain plan if they are satisfied that:

  1. The existing pre-development biodiversity value of the site is identified;
  2. The proposed post-development biodiversity value of the site is as specified in the biodiversity gain plan;
  3. That any required offsite biodiversity gain is formally registered and allocated and delivers sufficient gain;
  4. That any biodiversity credits specified in the plan have been purchased; and that
  5. Overall the biodiversity net gain objective has been met.

The Government’s response to the net gain consultation recognised that many planning authorities do not have an in-house ecological advisor or are already struggling to resource their existing workloads. The Government will assess and provide funding to support planning authorities, at least during the establishment phase of net gain delivery processes. It may be that the Government funds the preparation of the Local Nature Recovery Strategies (LNRS) that the Bill requires of them. These LNRS would typically provide the local framework for the delivery of biodiversity net gain and inform the development planning process. This will take time, although developers and planning authorities could use existing biodiversity and green infrastructure strategies and Local Plan supplementary planning documents to assist them in the meantime.

Overcoming the Issues

Dealing with biodiversity net gain early in the planning process will benefit developers, local planning authorities and the delivery of development on the ground.

Local planning authorities will need clear and objective biodiversity information as part of the biodiversity net gain plan. Demonstrating how biodiversity net gain requirements have been calculated through the use of a metric will become a standard requirement, typically using the Defra Metric 2.0 (released as a beta version in July 2019). Developers, local planning authorities and professional ecologists will need to work together to identify and establish the means to deliver the biodiversity net gain habitat creation / enhancement measures on and/or off site to provide the best solutions for the development.

BSG Ecology’s team of ecologists has experience of successfully delivering biodiversity net gain on sites throughout the UK.  If you need any advice in relation to Biodiversity Net Gain, please contact one of our offices.

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[1] The Wildlife and Countryside Act affords protection to various plant and animal species, and established the basis for the protection of habitats through the notification of Sites of Special Scientific Interest (SSSIs).

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