Government consultation on biodiversity net gain proposes dropping brownfield exemption

The government is proposing dropping previously-considered exemptions to its new biodiversity net gain (BNG) requirements for developments on brownfield land, in conservation areas or in national parks, according to a consultation launched today.

A biodiverse habitat near Loch Ness, Scotland (Credit: Edwin Remsberg c/o Getty Images)
A biodiverse habitat near Loch Ness, Scotland (Credit: Edwin Remsberg c/o Getty Images)

The BNG requirement was introduced in the Environment Act, which was passed last November, and is set to become mandatory in 2023.

It will require developers to demonstrate how they will bring about a minimum ten per cent increase in biodiversity in order to obtain planning permission for their projects. Under the act, the necessary habitat enhancement will be paid for by the developer and must be guaranteed to endure for 30 years.

A consultation setting out further details on the requirements was published this morning by the Department for Environment, Food and Rural Affairs, government agency Natural England, and the Department for Levelling Up, Housing and Communities.

The consultation document gives details on the scope of the new regulations required to implement BNG and how it would work for both development consented via the Town and Country Planning Act 1990 and for major infrastructure projects via the Planning Act 2008.

In a joint statement from the departmentsthe government said that while some developers, planning authorities and practitioners have already been voluntarily following a biodiversity net gain approach, or in line with local planning policy, “the proposed standardised, mandatory approach would give them clarity and certainty on the biodiversity net gain requirement and how to help enhance the environment through development”.

The consultation document states that exemptions are now currently only proposed for “developments impacting habitat areas below a ‘de minimis’ (minimal) threshold”, for householder applications and for change of use applications.

Plans that were floated in previous consultations to introduce exemptions for brownfield sites that “meet set criteria”, for temporary permissions and for “developments for which permitted development rights are not applicable due to their location in conservation areas or national parks” have now been dropped.

The previously-considered proposal to exempt certain developments on brownfields would, ,the government said, “deliver little added benefit and would greatly complicate the requirement’s scope for developers and planning authorities alike”. In addition, “many brownfield sites offer significant potential for achieving biodiversity net gain as they often have a low pre-development biodiversity value”.

However, additional exemptions are being considered, the document states, for the “creation of biodiversity gain sites” and for self-build and custom housebuilding.

The consultation document states: “The UK government will not introduce broad exemptions from delivering biodiversity net gain, beyond those exemptions already proposed for permitted development and householder applications such as extensions. The UK government will instead introduce exemptions for the most constrained types of development which do not result in substantive habitat losses.” 

Planning lawyer Nicola Gooch, a partner at law firm Irwin Mitchell, told Planning that the publication of the consultation document is important in giving the details about how BNG will work in practice.

She said there had been a number of appeal decisions recently dealing with the difficulties around biodiversity, and the metrics used at the moment don’t work well, particularly for large multi-stage infrastructure developments. 

“There have been issues because we haven’t got the policy framework,” she said. “This is the first step in fleshing out how this is going to work”.

In a blog post, Gooch noted that, in recognition of the issues that the current biodiversity metric can cause for outline and phased developments, the consultation puts forward proposals to allow for a phased approach to providing biodiversity information and meeting relevant targets. 

The government has also proposed a simplified biodiversity metric for small sites, she added.

Alongside the consultation, the government has announced a new funding pot of £4 million to help local planning authorities and other local authorities with what it calls “planning oversight” to prepare for BNG.

The government statement said that the funding would help local authorities “expand ecologist resource and upskill ecologist teams, increasing their capacity to work with developers and communities to provide biodiversity gains by helping restore wildlife, plants and landscapes after building work has taken place”. 

It said this work could take place on the development site, elsewhere in the local area or, if neither option is possible, by purchasing credits for nature restoration elsewhere in England.

The consultation is asking developers, planning authorities, environmental professionals and landowners for their views on the details of how biodiversity net gain should be delivered when building new housing or commercial development and closes on 5 April 2022.

Tony Juniper, chair of Natural England, said: “Investing in nature’s recovery is a vital national priority and biodiversity net gain is an ambitious and innovative mechanism to help do it. 

“It is important to remember, however, that the starting point is to avoid harm in the first place, moving to net gain arrangements only in cases where developments meet all other planning requirements. 

“I’m delighted that Natural England’s technical expertise was able to shape this policy and look forward to using it to secure better outcomes for Nature, while streamlining the planning process.”

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