Among Michael Gove’s last acts as environment secretary, ahead of the new prime minister Boris Johnson’s reshuffle, was publishing the Department for Environment Food and Rural Affairs’ (Defra’s) response to its own consultation on mandating biodiversity net gain in new development. The response late last month confirmed the government’s intention to legislate, in the forthcoming Environment Bill, to ensure that all new development produces an overall increase in UK plant and animal life. It envisages developers delivering "net gain" according to a strict hierarchy – first attempting to provide it on site, then, if not feasible, in the local area, and then, if no local sites are available, via the use of a government-approved list of UK sites.
At the same time, the housing ministry published updated Planning Practice Guidance (PGG) on the natural environment detailing how net gain should be delivered. The guidance suggests that measures to achieve net gain may involve creating new habitats, enhancing existing habitats, providing green roofs, green walls, street trees or sustainable drainage systems. But it makes clear that the policy does not override existing protection for designated habitats. Councils also "need to ensure that habitat improvement will be a -genuine additional benefit, and go further than measures already required to implement a compensation strategy", it adds.
The PPG states that the National Planning Policy Framework (NPPF) "encourages net gains for biodiversity to be sought through planning policies and decisions". But while the NPPF says that plans and policies "should" provide such net gains, Defra’s consultation response raises the bar by indicating that developers and planning -authorities face new requirements in this area. Here are four key new duties outlined in the document.
1. Developers must deliver 10 per cent net biodiversity gain through their schemes
Neither the December 2018 consultation that proposed mandating biodiversity net gain or former chancellor Philip Hammond’s March announcement that the policy would go ahead made clear exactly how much biodiversity gain developers will have to deliver. In the Defra response, the government officially opted for a net gain of 10 per cent.
Jonny Miller, principal consultant for biodiversity at consultancy WSP, said the target was more ambitious than currently required by many authorities. "We’ve worked on lots of projects applying a five per cent net gain so clearly this goes beyond that," he said. Alex Green, assistant director of development and sustainability at lobby group the British Property Federation said: "It’s not a huge departure from existing requirements in planning, but this now provides a consistent and measurable way of doing it."
The government response said there will be no general exemptions for the policy for minor, brownfield or commercial development, albeit an exception will be made for brownfield sites with challenging viability. Gareth Wilson, partner at consultancy Barton Willmore, said the new threshold would create problems on brownfield sites. "It’ll be very tricky on many sites to know how you’ll get a 10 per cent uplift."
2. Councils must produce "local nature recovery strategies" and administer the system
The government response said it will legislate to require planning authorities to create "local -nature recovery strategies" identifying where compensatory provision of biodiversity can be delivered. Defra said the strategies will "support better -spatial planning for nature" and will include "a statement of biodiversity priorities for the area covered" and "a local habitat map that identifies opportunities for recovering or enhancing biodiversity". Authorities will also have to process and assess developers’ applications against the requirement for a 10 per cent net gain .
Defra said it recognised the burden this placed on authorities, and that it will make sure they "have access to the right training, ecological expertise and systems required". It also said "the net -additional cost of new burdens… will be assessed and funded", though it gave no indication how authorities would recover those costs.
David Lowe, ecology team leader at Warwickshire County Council, which has piloted the "net gain" approach, said authorities could base their strategies on existing biodiversity action plans. But he added: "Authorities will still likely need to draw up supplementary planning documents to say how they will enact this, then employ people to deploy it, and call on independent ecological advice."
3. Developers will have to buy "biodiversity units" if they can’t deliver biodiversity locally
The government’s response drops its original proposal for a developer tariff to cover cases where no local sites for delivering biodiversity gain are available. Instead, developers will be able to invest in "nationally strategic habitats" with the purchase of government-provided "biodiversity units". However, the response said further work and "stakeholder engagement" was needed before the price of the units was set. Barton Willmore’s Wilson said: "The challenge here is that often the figures that come back for providing this are at the moment astronomical. It’s very expensive to do this offsite."
4. Developers have to guarantee "net gain" for 30 years, and authorities must police this
The response said any habitats created to deliver net gain must be maintained for a minimum of 30 years, or longer if possible, though it proposes no new powers for councils to enforce this. However, the government confirmed it will push forward a separate but related plan for "conservation covenants" which can be attached to sites to ensure that habitats are maintained when sites are sold.
WSP’s Miller said: "Planners will have to consider if developers have planned for this adequately and if they have the resources in place and a management company with the skills to deliver it." Wilson said: "It’ll be a challenge as authorities will want all the cost to be born by the private sector."