As a result of the re-publication of the Environment Bill and a greater focus on our natural environment and local biodiversity in light of current Covid-19 restrictions, the issue of Biodiversity Net Gain is now rising to the top of the agenda. Further information and background can be found in our earlier articles on the subject, i.e. Net Gain: Risk or Opportunity? (November 2019) and Biodiversity Net Gain – Further thoughts (January 2020).
At Lockhart Garrat, we are now in detailed discussions pertaining to a number of schemes across the country as developers, local authorities, stakeholders and landowners seek to better understand the risks and opportunities that the emerging policies embedded in the draft Environment Bill around Biodiversity Net Gain might bring.
Development activity in England will need to demonstrate a 10% gain in biodiversity as against the pre-development baseline position.
Over the last few months Lockhart Garratt has become involved in the development of net gain strategies on a number of flagship sites, from major urban extensions to strategic logistics facilities. This is bringing into sharp focus the challenges that this emerging requirement will create for many sites, in particular, the conflicting requirements of landscape and place making. This increases the likelihood that significant offsite provision or biodiversity contributions will have a notable impact on viability and planning strategies. At a time when we need to bring forward more housebuilding and development this could be seen as another major planning hurdle.
In this article we aim to provide a brief update on the current position as we understand it, and also to set out some initial responses to some of the questions that we are currently being asked by our clients and contacts.
Having been republished promptly in the New Year following the autumn election, the Environment Bill 2019-2020, has been delayed on the back of the current Covid-19 restrictions. Before lockdown, the Bill had reached the committee stage in the Commons and was progressing promptly, backed by a strong focus on delivery of key Government commitments around the environment.
Within the current iteration of the Bill, it is anticipated that all consented developments (with certain modest exceptions), will be mandated to deliver a biodiversity net gain of 10% as against the measured baseline position using the evolving Defra metric.
All biodiversity sites will need to be recorded on a Biodiversity Sites Register and maintained to deliver their biodiversity objectives for 30 years.
Frequently Asked Questions
Obviously, in the current climate with the Bill still going through the parliamentary process it is not possible to be definitive. However, in this section we have provided answers based on our best understanding of the current thinking which should be useful in guiding your strategic planning in this area.
What is the anticipated timetable for the proposals in the Bill to come into law?
Obviously, there are uncertainties with the Covid-19 crisis. However, the Commons Committee is due to report by 25 June, so it might be realistic to assume that the Bill could come into effect by the end of the year.
How does this link in with existing Local Planning Authorities policies?
The National Planning Policy Framework already states that planning should deliver biodiversity net gain, and this was further strengthened in the 25 year Environment Plan. Many Local Planning Authorities such as Warwickshire already stipulate biodiversity net gain and have mechanisms to deliver this. However, many do not, creating an uneven picture across the country. Following the publication of the Bill, many are looking at this again and are likely to adopt the Defra metric (see below) as the most suitable tool.
How will the Biodiversity Net Gain be measured?
It is proposed that this will be measured using the emerging Defra Metric. The metric currently focuses on habitats, including specific linear calculations for both hedgerows and rivers.
Using the metric, a baseline biodiversity score for the site ahead of the development can be calculated. The revised metric has evolved to include a much wider range of habitat types. It also adjusts scores based on additional criteria around distinctiveness, condition, connectivity and strategic significance.
The site can then be evaluated based on the habitats that will be created as part of the development and landscape proposals for the site on completion. Based on this calculation a net position will be established to demonstrate the net gain or net loss in biodiversity.
When will the baseline position be established?
At present, it is proposed that the baseline position would be calculated at the date that planning consent is granted. However, in reality it is likely that, the Local Planning Authority will be open to agreeing an alternative date, probably based on the timing of the Preliminary Ecological Appraisal that is likely to be required for most sites.
Can I change the management of a site to reduce its baseline value?
No. The Bill is anticipated to specify that any management changes that would notably reduce the biodiversity score from the date of publication of the current Bill i.e. 20 January 2020, must be ignored in the calculations to establish the baseline position.
How is it envisaged that Biodiversity Net Gain be integrated into the planning process?
The Bill envisages that a detailed Biodiversity Gain Plan will need to be submitted to the Local Planning Authority and receive formal approval before development is commenced.
The plan will need to include the baseline and post development positions, and if a net loss is anticipated, how the net gain position will be achieved either through offsite provision or the purchase of biodiversity credits.
What if I am not able to meet my biodiversity obligations on site?
If it is not possible to achieve the required biodiversity credits on site to meet the net gain obligation there are two options:
- To secure biodiversity credits from land offsite which can be enhanced from a biodiversity perspective;
- To purchase biodiversity credits from a third party or the Secretary of State.
Any offsite provision will also need to be included on the Biodiversity Site Register and will need to be managed and maintained for the required 30 years. It is likely that local Wildlife Trusts and other habitat banking organisations may be able to provide suitable biodiversity sites and management agreements. We anticipate that local authorities will develop suites of possible sites will meet their Local Nature Recovery Strategy objectives.
How will biodiversity habitats be protected and how long will they have to be maintained?
As noted above, all relevant biodiversity habitats and features will need to be recorded on the Biodiversity Gain Site Register. Any registered sites will need to maintain the biodiversity enhancement for a minimum of 30 years from the date of completion of the habitat enhancement works.
How will this be monitored?
It is anticipated that habitat enhancements will be delivered either through planning conditions, obligations or a conservation covenant. Therefore, monitoring will be an obligation for the Local Planning Authority or the responsible body within any conservation covenant agreement. It is also anticipated that there will be regulations in respect of the maintenance of sites on the Biodiversity Gain Site Register.
Are there any exceptions?
The current draft Bill proposes that all developments granted planning permission by the Secretary of State using a development order (including the General Permitted Development Order) will be exempt.
The obligation may also be removed where the habitat is an ‘irreplaceable habitat’; for phased development; or planning permissions granted under S73A TCPA (planning permission for development already carried out).
It is also proposed that the Secretary of State will have the power to exempt developments from the general condition, e.g. major infrastructure projects.
Do we have any indication of the cost of biodiversity credits?
At present there is no standard tariff for biodiversity units. However, where authorities have developed their own matrices these have started to emerge. Going forward it is anticipated that a schedule of tariffs will begin to be revealed. However, this will be complicated by the fact that the metric and the Biodiversity Gain Plans will need to respond to specific conditions on site in relation to the habitats that need to be created and thereby any relevant costs.
However, given that 1ha of species rich grassland hay meadow will record some 3.5 credits, the cost of establishing this and maintaining it for the required 30 years is likely to run into tens of thousands of pounds.
I have heard that the creation of some highly valued habitats, and in particular new woodland, are prejudiced by the current Defra metric. Is this correct?
Woodland and some other habitat creations are scored down within the current metric based on the perceived risks as well as the time that it is estimated to reach its target condition.
In the case of woodland, the Forestry Commission and other key stakeholders are aware of this issue, and in particular, the fact that this could prejudice the creation of biodiversity habitats that are more likely to be permanent features in the landscape well beyond the 30 year obligation.
What is the difference between Biodiversity Net Gain and Environmental Net Gain?
One of the risks of simply focusing on biodiversity is the likelihood of missing the real target of the wider, some would say more sustainable, goal of wider environmental net gain. There are many other benefits that are critical to our natural capital and wider society that would be encompassed under a wider environmental net gain approach. For example:-
- clean air;
- clean water;
- carbon sequestration;
- flood prevention;
- soil protection;
- food/timber production;
- physical health and well-being;
- landscape; and
The government understand that biodiversity net gain alone is unlikely to be the best way to deliver wider environmental objectives.
Work is currently ongoing to widen the scope of the Defra metric to take it beyond biodiversity in isolation. However, it is likely that this will seek to build on the biodiversity net gain objective rather than replace it.
There are some excellent examples of local authorities and other bodies who are really starting to look at the wider environmental net gain and use this to shape the development options.
In North Northamptonshire, Lockhart Garratt has been supporting the Joint Planning Unit in conjunction with East Northants Council to pioneer a Natural Capital led approach that was recognised at the recent planning awards.
“Developing with Nature Toolkit”
We have also been involved in assisting the Cambridgeshire Local Nature Partnership (Natural Cambridgeshire) who have created the “Developing with Nature Toolkit” which again aims to expand its scope beyond pure biodiversity, focusing on engagement with key stakeholders and a proactive response to the wider green infrastructure networks.
This has now been adopted as policy by both Peterborough and Cambridge and South Cambridgeshire Councils.
Natural Cambridgeshire and the stakeholders see this as a key element in the aspiration to see a doubling of nature across the county. This is highlighted in their publication “Doubling Nature – A Vision for the Natural Future of Cambridgeshire & Peterborough in 2050”.
What actions should I be taking now?
As stated in our earlier articles there are a number of actions that you should be considering now. Whether as a landowner contemplating the opportunity of creating and managing habitats to deliver biodiversity credits, or a developer seeking to get a better understanding of the risks and opportunities for any particular site.
- Understand the baseline position for your land/site and ensure that these are managed effectively to develop opportunities and control risks.
- Undertake trial assessments on existing and new projects to ensure that you effectively feed back into the emerging policy and discussions on the metric.
- Understand the cost implications of the development of, and purchase of, biodiversity credits.
- Understand the impact on place and value of a shift in focus from wider public benefits to biodiversity, and opportunities for provision of the assets with a changing rural landscape.
How can Lockhart Garratt help?
- Provide initial biodiversity net gain screening of potential development sites at pre-planning and due diligence stage.
- Support landowners through baseline assessment and opportunity evaluation for potential biodiversity sites.
- Provide green infrastructure appraisal and support design of multi-functional landscapes to meet biodiversity and wider net gain objectives.
- Provide detailed habitat management guidance and support including preparation of cost effective long term management plans and associated cost models.
- Provide guidance on options for grant funding delivery and management support.
- Provide support to identify suitable biodiversity net gain opportunities and negotiate with provider e.g. landowners, local Wildlife Trusts and habitat banks to deliver cost effective and innovative offsite solutions.
Please note that the information and views contained within this article are based on the professional opinion of the author(s). Lockhart Garratt always advise seeking professional advice on the matters discussed herein.
For further advice and support please contact:
 Local Nature Recovery Strategies will have to be prepared by for the whole of England under the provisions of the Bill. It is anticipated that these will usually be a local or unitary authority level.
 Conservation Covenants are also proposed under the Bill to provide a Local Land Charge with an obligation for ongoing positive biodiversity management.