Is biodiversity net gain currently allowable for NSIPs? By Angus Walker

The Environment Bill was published on 15 October. It contains a provision that every (with exceptions yet to be specified) new planning permission must include a condition that development cannot begin unless a "biodiversity gain plan" has been submitted and approved.

Such plans are expected to set out steps to minimise any harm to biodiversity caused by the development, detail biodiversity gains made by offsite projects undertaken to compensate for the impact of the development and explain the pre- and post-development biodiversity value of the site.

This is ground-breaking stuff, but what does it mean for nationally significant infrastructure projects (NSIPs), as defined by the Planning Act 2008 regime?

The government has already said that the Environment Bill would not extend to them, although it is assumed that NSIPs will be expected to demonstrate biodiversity net gain. But it would currently be difficult to gain consent for measures intended to add biodiversity net gain via the development consent orders (DCOs) used for NSIPs, even if the developer wanted to. This gets a bit legal, so bear with me. But the overall reason is that the development consent regime has certain limits to its scope, and biodiversity net gain is potentially outside that scope.

The first issue concerns compulsory acquisition powers. These can be included in an application for a DCO, but the land to be included must be either required for the development, "associated development" required to facilitate it or be incidental to it (i.e. a consequence of it), or be replacement land given in exchange for sites, mainly open space, that are being used by the development. I don't think land for biodiversity net gain comes within any of those categories because it is something over and above that which is strictly needed for the project.

But what if the developer has land of its own on which it could provide biodiversity net gain, so the above considerations would not apply? In that case, we move on to consent to develop the land for biodiversity net gain (i.e. the equivalent to planning permission). Development consent can only be granted for the NSIP itself, however, or "associated development". Given that biodiversity net gain is over and above what is needed for the project, it is also difficult to see that it could be characterised as "associated development", and it certainly isn't part of the NSIP.

Some might argue that providing biodiversity net gain does not involve development because it simply involves planting something or setting land aside, or that permission for the net gain could be applied for separately from the DCO. In either case, the DCO route would be closed, but the option of obliging the provision of biodiversity net gain by means of a requirement (the Planning Act 2008 word for a condition) would remain. Planning Inspectorate advice is that requirements should fulfil the same criteria as planning conditions, meaning that they must be "precise, enforceable, necessary, relevant to the development, relevant to planning and reasonable in all other respects". Once again, for similar reasons to the above, biodiversity net gain is arguably neither necessary nor relevant to the development.

If the provision of biodiversity cannot be the subject of compulsory acquisition powers, cannot fall within the definition of "associated development" and cannot properly be included in a requirement, then can it be demanded of an NSIP at all? If not, it would not be that surprising, because it would be somewhat akin to asking for unrelated improvements or money to try to get planning permission, which is generally forbidden on the grounds that planning permission should not be able to be bought. But it would be unfortunate if something so obviously beneficial were to be caught by the same considerations.

What to do? The government should declare that (a reasonable or specified amount of) biodiversity net gain is properly able to be included in an application for development consent, either within the scope of compulsory purchase (as "required", or "incidental"), as "'associated development", or as a suitable subject for a requirement. The level of net gain cannot be unlimited though, or it could go beyond fulfilling policy.

Something to think about as the Environment Bill embarks on its parliamentary journey.

Angus Walker is a partner at BDB Pitmans


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