The implications of the Environment Bill's proposed requirement for two new types of mitigation plan

Measures in the government's new Environment Bill, including proposals for councils to produce spatial "nature recovery strategies" and for developers to prepare biodiversity net gain plans, have prompted concerns about fresh burdens on practitioners.

Biodiversity: Environment Bill intended to help reverse decline in wildlife (pic: Noel Reynolds, Flickr)
Biodiversity: Environment Bill intended to help reverse decline in wildlife (pic: Noel Reynolds, Flickr)

The Department for the Environment, Food and Rural Affairs (Defra) has published its long-awaited Environment Bill, which aims to ensure that new development adds to biodiversity. At its heart is a mandatory requirement that schemes secure an overall ten per cent biodiversity net gain. "This can be achieved with on-site provision for habitats or off-site measures to promote biodiversity," said Ben Kite, managing director of environmental consultancy EPR.

At the core of the process will be a new statutory requirement for local authorities to draw up "local nature recovery strategies" (LNRSs). According to the bill, the strategies are "tools that will support better spatial planning for nature recovery, by setting out priorities and opportunities for protecting and investing in nature within a local area". As well as a "statement of biodiversity priorities for the strategy area", they must also include a "local habitat map". This must show "existing nature assets including protected sites and wildlife-rich habitats" and "identify key opportunities for enhancement".

Further details on the "procedure to be followed in the preparation and publication" of the strategies will be set out by the secretary of state in future regulations. The minister will also determine the "responsible authority" for producing them as well as the areas covered by each strategy, though in total they will cover the whole of England.

Defra's response in the summer to a consultation on its net gain proposals set out more details on how these strategies might impact on planning. It said: "We envisage that LNRSs will inform the town and country planning process by providing an important source of evidence to support plan-making, and underpinning actions local planning authorities or neighbourhood planning groups choose to take to protect and enhance biodiversity in their areas." However, it added: "It will continue to be the case that the development plan itself is the principal document at the heart of the planning system."

The legislation is not clear about which local authorities will prepare the nature recovery strategies, said David Lowe, ecology team leader at Warwickshire County Council. Since 2012, the council has operated a biodiversity net gain programme across the county. Lowe said habitats do not respect district boundaries and suggested they are best prepared by counties or combined authorities.

What is clear is that the strategies will need to identify habitat networks, said Lowe. "Local plans will need to refer to these strategies to ensure that development proposals, as they come forward meet the biodiversity priorities," he said. The strategies could have the status of supplementary planning documents, he suggested.

Lowe and other commentators said much of the information required to prepare the strategies is already available among many local authorities. Kite said some authorities are already considering acquiring suitable land where the biodiversity could be enhanced by developers. "This would make it easier for the developers to fulfil the biodiversity gain requirement," he said.

Meanwhile, developers will be required to draw up "biodiversity gain plans" as part of their planning proposals, the bill states. While the proposal for developers to prepare such plans was mentioned in July's Defra response, the bill reveals far more details, including that planning permission is dependent on submission and approval of the documents.

Matthew Stimson, associate at law firm Shoosmiths, said: "The gain plans will need to be approved by the local planning authority before commencement of the scheme. They will need to set out the steps to be taken to minimise the adverse effect of the development on the biodiversity of the onsite habitat and how the gains will be achieved whether it is on or offsite." The bill says the plans must state both the pre- and post-development biodiversity value of the onsite habitat. It also allows developers to purchase "biodiversity credits" from Natural England to fulfil their obligations if they can’t deliver biodiversity improvements locally. Natural England would then use the funds on projects elsewhere that achieve the net gain.

Local authorities will be central to ensuring that net gain is secured and habitats are enhanced or created, said Philip Ridley, Planning Officers Society spokesman on natural resources and head of planning at Suffolk Coastal District Council. "It is important that local authorities are properly resourced with ecology officers to operate the new system," he urged. Ridley said only about 20 per cent of authorities have ecologists to advise developers and assess whether their gain plans are acceptable. His council employs two ecology officers who also work for surrounding authorities when they’re needed, he said and suggested that other councils could follow this sharing model.

How net gain proposals have prompted viability concerns

There are concerns in the housebuilding industry that the biodiversity gain requirement could make some housing developments unviable. The bill’s impact assessment sets out some narrow exemptions that mainly cover national infrastructure projects and householder applications. Certain brownfield sites that have a high proportion of derelict land or whose land values are significantly lower than average are also excluded. The impact assessment promises secondary legislation that will define the exemptions more closely.

The bill’s impact assessment suggests the requirement to achieve a ten per cent increase in biodiversity could cost developers an average of £20,000 per hectare, according to Andrew Whitaker, planning director at the Home Builders Federation (HBF). This could render some small- and medium-sized schemes unviable, he suggested. He said the costs could range considerably depending on the site conditions. "Achieving a ten per cent increase on a site rich in biodiversity will require considerably more investment than one with very little," he points out.

As a result of these concerns, which were voiced in a consultation on the proposals earlier in the year, Defra said in its response this month that it would "address viability concerns" when firmer plans for its net gain policy emerge. But some in the development sector are positive about the government's ambition. Having a target "provides certainty for developers," said Alex Green, assistant director for sustainability at lobby group the British Property Federation. However, he called for some "flexibility" in how it is applied and suggested that a pilot programme should test the policy across different site types before the requirement is implemented nationwide.

Anne Selby, chief executive of conservation body The Wildlife Trust for Lancashire, Manchester and North Merseyside said because the biodiversity requirement is mandatory, the implementation costs would be factored into the price paid to the landowner. "The viability of development should therefore not be affected," Selby said, adding that some of the onsite measures to support biodiversity, such as provision of open space, could actually improve the development's quality.

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