How the Environment Bill will change the planning system: the Planning briefing

How the revised legislation will affect applicants and authorities. By Isabella Kaminski.

Biodiversity: Bill intended to halt species decline (pic: Noel Reynolds via Flickr)
Biodiversity: Bill intended to halt species decline (pic: Noel Reynolds via Flickr)

The government first introduced an Environment Bill in October, promising to position the UK as a "world leader" in improving air quality, environmental biodiversity, water resource management and addressing climate change. It will enshrine in law key environmental principles, establish a new regulator and set legally binding targets. An updated version of the bill was introduced on 30 January after the first was sidelined by the December 2019 general election.

Biodiversity gain

What is new?

The key change for planning is a new duty for developers to deliver ten per cent net biodiversity gain in new schemes. This toughens the current requirement in the National Planning Policy Framework (NPPF), that planning policies and decisions "should" enhance the environment by "minimising impacts on and providing net gains for biodiversity".

The duty will affect most development in England. Last July, following a consultation, the Department for Environment, Food and Rural Affairs (Defra) stated that it would exempt permitted development and householder applications such as for extensions, as well as nationally significant infrastructure and marine projects. It will also "introduce narrow exemptions for the most constrained types of development" and a specific exemption for certain brownfield sites, Defra said, adding that these will be defined more clearly in secondary legislation.

A date has not yet been set for introduction of the duty, but when it is, the bill states that developers will have to submit "biodiversity gain plans" alongside planning applications. These must set out the biodiversity value of onsite habitats before and after development, steps to minimise adverse effects and how gains will be achieved.

Planning permission will depend on approval of these plans by the local authority, notes accompanying the bill confirm. According to Simon Marsh, head of nature protection at wildlife charity the RSPB, the duty will function like a pre-commencement planning condition, "so that a planning authority could grant planning permission but development can’t begin until the gain plan has been agreed".

The bill says that biodiversity gain and loss will have to be measured using Defra’s biodiversity metric, which assesses a habitat in terms of its value to wildlife, condition and size. It was developed by nature regulator Natural England in 2012 and Defra is consulting on an updated version.

Councils and applicants will also have to follow a mitigation hierarchy that favours approaches that don’t require mitigation (because they avoid harm to biodiversity), followed by those that involve on- and off-site mitigation measures and, as a last resort, compensation (see next section). Such a system exists under the NPPF, says Ben Kite, managing director of environmental consultancy EPR, but will now be stricter.

Under the bill, developers will also have to guarantee biodiversity gains for at least 30 years and commentators expect councils to be responsible for policing this. Jonny Miller, principal consultant for biodiversity at consultancy WSP, says the guarantees are likely to come via conservation covenants or planning obligations.

Practical implications

Developers are concerned that the new duty will involve extra costs. According to WSP technical director Tom Butterworth, calculations show that a small development would typically pay £2,000 extra up front just to undertake the necessary biodiversity assessments under the 2012 Defra metric. But Anne Selby, chief executive of conservation body The Wildlife Trust for Lancashire, Manchester, and North Merseyside expects that the mandatory nature of the duty means implementation costs will be factored into the price paid by the developer to the landowner when buying the site.

Planning lawyer Matthew Stimson, an associate at Shoosmiths, says there is "no doubt" that the duty will place an additional administrative burden on developers and local authorities. But he expects developers to adapt to the changes quite quickly, noting that "the concept of making biodiversity improvements or including biodiversity measurements on site" has been part of the planning system for a while.

Kite says larger consultants should "slip into using" the new Defra metric fairly easily. "I suspect it will be a greater problem for smaller consultancies and freelance ecologists, who tend to work for smaller schemes and might not turn over enough schemes in a year to have chanced upon this yet." Natural England offers training to use the metric, he adds.

Since local authorities will be central to the functioning of the new duty, the availability of ecological expertise is a particular concern, say observers. Councils such as Warwickshire and Lichfield have already established local biodiversity gain strategies so there are experiences that can be drawn on.

But Philip Ridley, Planning Officers Society spokesman on natural resources and head of planning at Suffolk Coastal District Council, says only about 20 per cent of authorities have ecologists to advise developers and assess whether gain plans are acceptable. His council employs two ecology officers who also work for surrounding authorities when needed, he says, suggesting that other councils could adopt a sharing model.

Biodiversity credits for developers

What is new?

If developers themselves cannot deliver the required on-site biodiversity improvements, they will have to buy credits as a means of compensation. Defra has said that councils and landowners will be able to set up local habitat compensation schemes, but there will be a supply of credits from central government available as a "last resort".

Explanatory notes accompanying the bill state that it makes "provision for the secretary of state to set up a system to sell a supply of statutory biodiversity credits", with proceeds contributing to "strategic ecological networks" and "long term environmental benefits". The bill requires the environment secretary to set the price of credits "at a level that does not discourage" local development. The document adds that the government will conduct a review and consultation "before setting a price". Details of exactly how the credit system will work are still awaited.

The Bill says the government will set up a publicly available register of compensatory habitat sites. This will show what new habitat is being created and where under the net gain scheme, as well as what development it is offsetting.

Practical implications

It is not yet clear exactly how these private, local and national systems of compensation will interact or how much credits will cost. However, there are already operational biodiversity credit systems in pioneering authorities such as Warwickshire.

Kite says the most foresighted local authorities could use their new local nature recovery strategies (see next section) to identify areas that can compensate for losses elsewhere. This would help them manage their areas in the interests of conservation and avoid delays in development if no habitat can be found to fulfil the biodiversity net gain duty, he says.

Some authorities are already considering acquiring land where the biodiversity could be enhanced by developers, says Kite. "This would make it easier for the developers to fulfil the biodiversity gain requirement." Canny developers and landowners may also be able to set up new natural areas or develop existing ones and sell them as biodiversity credits, says Stimson.

Local nature recovery strategies

What is new?

The bill obliges councils to produce spatial "local nature recovery strategies". According to an accompanying policy statement, these documents 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", says Defra. This must show "existing nature assets, including protected sites and wildlife-rich habitats" and "identify key opportunities for enhancement".

Meanwhile, the bill’s notes say the biodiversity priorities statement must include descriptions of "the plan area and its biodiversity" and "priorities for recovering or enhancing biodiversity".

Details will be set out in future regulations, the bill notes say, including a decision on whether upper- or lower-tier authorities would be responsible for preparing strategies. The notes add that in total they will cover the whole of England.

Practical implications

It is not yet clear exactly how these strategies will affect planning. In its response last year to a consultation on biodiversity gain, Defra envisaged they would provide "an important source of evidence to support plan-making" and underpin actions taken by local planning authorities or neighbourhood planning groups "to protect and enhance biodiversity". However, the department stressed that the development plan itself would remain the "principal document at the heart of the planning system".

Environment secretary Theresa Villiers has said the government will provide additional data, guidance and support for authorities in producing the documents. However, commentators say much of the information required to prepare the strategies is already available.

David Lowe, ecology team leader at Warwickshire County Council, which has operated a biodiversity net gain programme since 2012, says that local plans "will need to refer to these strategies to ensure that development proposals, as they come forward meet the biodiversity priorities".

Marsh says the important question is how these strategies can support the creation of a nature recovery network across the country, enabling authorities to identify priorities in any area. Selby believes the strategies will provide a chance for local authority planners to improve local environments. Implementing the bill’s measures plus other proposed changes in environmental law and policy means they "can look at being quite ambitious", she says.

Office for Environmental Protection

What is new?

The bill establishes a new public body called the Office for Environmental Protection (OEP) to regulate the UK’s environment after the European Commission ceases to have jurisdiction. The government has promised an "independent watchdog with the teeth to hold government and other public bodies to account on their obligations on the environment – including on climate change". It will have power to apply for judicial review if it thinks a public body has broken environmental laws. Marsh expects the OEP to cover planning-related environmental legislation, including environmental impact and habitats regulations assessments.

Practical implications

Explanatory notes to the bill say its role would normally exclude "individual local planning… decisions" so Marsh does not expect the OEP to have a big impact on planning from a day-to-day perspective. "But it could have a more strategic overview," he says, enabling it to tackle problems in the planning system.

Richard Cowell, professor of environmental policy and planning at Cardiff University, says giving the OEP oversight, complaints handling and enforcement roles in relation to planning "could be a major step towards finally delivering a more coherent system... in which the operation of planning becomes more closely aligned with the delivery of environmental goals". We do know that the OEP’s remit will include climate change. "It is possible the OEP will have some kind of role commenting on, for example, the adequacy of local plan policy with respect to climate change," says Kite.

Other measures

Duty to enhance biodiversity

Amendments to the Natural Environment and Rural Communities Act 2006 proposed by the bill would put councils under a statutory duty to "enhance" as well as "conserve" biodiversity and to publish reports on how they meet this. Stimson says this may have an indirect impact on planning as another factor to be considered when granting permissions.

Air quality

The bill proposes a legally binding target to reduce fine particulate matter (PM2.5) and increase local authority powers to address sources of air pollution. Stimson says air quality rules are having an impact, with some local authorities forced to halt permissions temporarily due to high emission levels. "It will be a consideration that needs to be taken into account… and will be raised by objectors to development."

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