This blog continues our Natural Capital series, including the planning-related provisions of the Environment Bill 2019-21 (the Bill). The last blog explored the impact Local Nature Recovery Strategies (LNRS) will have in shaping the framework for development consents (whatever happens to the Local Plan system via wider reforms).
This blog explains how the Bill sets about defining biodiversity net gain (BNG) and how BNG would be delivered.
New benchmark – 10% better
Securing measurable and permanent increases in BNG – i.e. in the quality and size of habitats – through development is a complex endeavour. Since 2018 there has been a clear BNG requirement in the NPPF (paragraph 170d). However national guidance on how this requirement should be met is limited and LPAs have seldom sought to enforce the requirement.
…Enter the BNG provisions of the Bill. The Bill creates a legal framework for ensuring that developments in England secure a BNG of at least 10% – the ‘biodiversity gain objective’ (BGO).
Planning permissions in England would be subject to a condition restricting commencement of development until a ‘biodiversity gain plan’ has been approved by the planning authority (sch. 7A, para. 13). It will not be possible to use s.73 applications to switch this off.
Routes to achieving the BGO
The Bill framework prescribes three different means by which developments can deliver BNG and thus achieve the BGO:
- On site gain: habitat enhancements carried out as part of the development and maintained for at least 30 years;
- Off site gain:
- Biodiversity Gain Sites (BGS): habitat enhancements carried out and maintained for at least 30 years off site, on a BGS, and ‘allocated’ to the development (Clause.91). The enhancements and their allocation are secured by:
- Conservation Covenant: a new statutory covenant between a landowner and a ‘responsible body’ (the Secretary of State, a local authority or conservation organisation) imposing positive or negative obligations on either or both parties for habitat protection or enhancement (Part 7, Clauses.102 – 111). They bind successors in title and are enforceable by the responsible body and the landowner against each other (Clauses.102 – 111); or
- Section 106 obligations;
- BGSs (and details of the relevant enhancements) are to be recorded in a BGS register. The Bill leaves it to regulations to provide for the administration of the register, the eligibility of sites for registration, the application process, and appeals against the rejection of a BGS application (Clause.92(4)-(7));
- Biodiversity Credits, purchased from the Secretary of State (s.92). Payments for these must be used for habitat enhancements and purchasing land for that purpose (s.92(3)).
- the Bill appears to envisage that enhancements funded by payments for biodiversity credits will be carried out on BGSs (s.92(4));
- the Secretary of State is to make arrangements for biodiversity credits, including the biodiversity value of a credit and the price to be paid for one (s.92(1) – (3)).
- If a biodiversity enhancement measure is not one of the above three means, it would not count as biodiversity gain.
Priorities Need Attention
As the image above indicates, the concept of a net gain requirement implies that losses can be acceptable. A major issue in the implementation of the proposed BNG framework (which the Bill does not address) is how it will fit in with the biodiversity mitigation hierarchy – where compensatory provision for loss of BNG is only acceptable as a last resort if the Avoidance and Minimisation/ Mitigation stages have been exhausted first.
Our next blog in the series will consider how the biodiversity gain plan and its approval would ensure that the BGO is achieved. The blog after will explore how far developers may be able to choose which (or what combination) of the BNG routes outlined above to use in achieving the BGO.
 Clause 90 and Schedule 14 of the Bill insert a new s.90A and Schedule 7A into the Town and Country Planning Act 1990