This was passed into legislation last month. It is complex, and there are a lot of loose ends to be tied up via secondary legislation. I will look at the implications of Biodiversity Net Gain (BNG)
As probably all now know, this will be a strict requirement by November 2023, so any application considered on or after that date will have to provide a Net Gain Plan (NGP). In that report, the approved biodiversity metric at that time will need to demonstrate that there is an overall uplift of 10% or more gain. The current metric is V3 but an update to this is likely. The NGP will also have additional biodiversity benefits/enhancements, if considered necessary as part of the planning application.
The Act will require that the baseline habitat is evaluated according to its condition on or before 30 January 2020, regardless of clearance activities undertaken since then. Developers will want to consider how the land has been managed since this date prior to purchase as the site may have much greater ‘historic’ value than it currently appears to, which will be harder/more expensive to compensate for.
The enhancement package will need to show deliverability in terms of management plans that are funded for at least thirty years to guarantee the final habitat achievements. A mechanism such as a Section 106 may be used for this, or possibly a trust/contract with a third party to ensure outcomes.
There is a three level hierarchy for achieving BNG:
Absent the secondary legislation ( which is promised in Spring 2022) there is little detail as to how in practice the above might actually work. We will keep an eye out for the legislation and update as it emerges. But there are numerous pitfalls evident.
1. If possible, get schemes permitted before the deadline. Some local authorities have policies in place at the moment requiring 10% BNG, but these can be negotiated through the planning balance. They will not have the legal standing of the EA (2021) This is particularly true of small sites, where we are finding at present BNG can be very hard to achieve. Small sites will not provide the value needed to buy what could potentially be very expensive off-site compensation.
2. Look very actively into partnering on ROBG sites. It is evident that it will take awhile for these to get registered and the requirements for these are not simple. It may be that within a major developers land bank there might exist potential ROBG land; main landowners in the developers area of interest may be amenable; or small-medium developers may team up with similar in their area to identify environmental land banks that can be registered as ROBGs. Local wildlife trusts may become active in this and a positive relationship with them would be beneficial.
3. Land can not be easily used to compensate for more than one development. If your planned mitigation provides additional biodiversity units above the 10% requirement and you want the extra units to go towards another scheme, the land should be divided into separate parcels with distinct management plans/S106 agreements and BNG calculations for each.
4. Carefully consider what area of land is included within the red line. This will become a critical decision and needs to be made early. Try to avoid including land of higher ecological value within the red line. The BNG calculation is simplistic and only looks at direct land loss. It does not include off-site or ecological network effects (indirect impacts). This could substantially change how masterplanning is considered going forward. Off-site land could then become the compensatory land; and the lower the intrinsic ecological value of the red line land, the easier it is to achieve BNG. A Preliminary Ecological Assessment is advised early in the site planning stage.
There is no doubt that once this becomes a planning requirement, it will slow down the permitting process. Local planning authorities are not well-equipped to assess BNG and will be slow to understand how it fundamentally changes the approach towards ecological enhancement.
THE ENVIRONMENT ACT FINALLY BECOMES LAW – 10 NOVEMBER 2021
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