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2020 – 2021 Will Change Developer’s Planning Obligations

From losing EU protected species and habitats legislation and the associated EU enforcement body, to novel licensing schemes, and an introduced national bill looking to set in law a requirement for biodiversity net gain and a new national environmental watchdog. There is more imminent change in the ecology sector than there has been for decades, which will have a lasting impact on the approach of planning and development to biodiversity issues.

In this article we look at just one imminent change: The Environment Bill (as introduced).

The Environment Bill was introduced to the House of Commons and given its First Reading on 30 January 2020. This being the first step through the House of Commons and then the House of Lords, it may be some time before the subsequent consideration of amendments, the bill receiving Royal Assent, and then becoming an Act of Parliament (law). However, with the upcoming end of the Brexit transition period on 31 December 2020 after which new rules take effect, we predict it will be sooner rather than later. So, what are our key take-home messages from The Environment Bill for developer’s planning obligations regarding biodiversity?

A New Environmental Watchdog

Prior to the exit of Britain from the EU, it was mainly the European Commission that enforced much of the UK’s compliance with EU wildlife and habitats legislation, forming the cornerstone of protected species (such as newts and bats) and habitats protection in the planning system in England. Chapter 2 of The Environment Bill makes provisions to ensure there isn’t a gap in enforcement on environmental legislation post-brexit transition period, calling for the creation of a new statutory independent body for England, the ‘Office for Environmental Protection’ (OEP), responsible for holding government accountable regarding its environmental law in post-brexit Britain.

Biodiversity Net Gain (BNG) To Become Mandatory

“Biodiversity gains are to be made a condition of planning permission in England, requiring a development to achieve a 10% increase in biodiversity value”

The Environment Bill is significant for developer’s planning obligations as it seeks to place Biodiversity Net Gain (BNG) into law. BNG as a policy is not new, the broad concept of environmental net gain was introduced in the Government’s 25-year Environment Plan, and later in 2018 BNG was embedded in the National Planning Policy Framework. To date BNG’s implementation, and the mechanisms by which it is measured and achieved, have been inconsistent between Local Planning Authorities and not implemented at scale across England.

The government then held consultation on whether BNG should be mandated in the planning system for England, which has resulted in mandatory BNG’s inclusion in The Environment Bill (as introduced). BNG has been gaining traction and looks set to stay, likely to be enshrined in law as an Act of Parliament via Royal Assent of The Environment Bill, to be adopted across England into the planning system creating new planning obligations for developers and local planning authorities alike. There will however likely be some site-based exemptions for BNG requirement.

In the ‘as introduced’ version of The Environment Bill, ‘Part 6 Nature and Biodiversity’ sets out the provisions for biodiversity gains:

·       Biodiversity gains are to be made a condition of planning permission in England, requiring a development to achieve a 10% increase in biodiversity value relative to the pre-development baseline of the site, as calculated by a metric provided by Defra.

·       Developers (or their Ecologist) will need to submit a ‘Biodiversity Gains Plan’ as part of the planning application process clearly demonstrating 10% BNG achievement, including the pre and post development biodiversity value of a site (i.e. via biodiversity metric calculations based on a habitat survey of the site), and details of any offsite gains required to meet a shortfall and/or biodiversity credits purchased.

·       There will be a Biodiversity Site Gains Register. Where a developer for the purpose of planning obligation (or other) carries out habitat enhancement on land (i.e. under a conservation covenant), this will need to be maintained for 30 years post-development and may need to be recorded on a biodiversity gains site register open to public access, for which there could be an application fee.

·       Biodiversity credits. The Secretary of State may enable developers to purchase ‘credits’, for the purpose of meeting their biodiversity gains planning obligation where biodiversity gains cannot be achieved within a development site. The Secretary of State would then use developer’s payments for credits to facilitate habitat enhancement and would be obligated to publish reports detailing the spending of credits.

·       General duty of planning authorities to conserve and enhance biodiversity.  This section makes a provision to amend Section 40 of the NERC Act 2006, including changing the duty on planning authorities to ‘conserve’ biodiversity to a duty to ‘enhance’ biodiversity, and having regard to local nature recovery strategies. This is to update the language of ‘conserving’ in the 2006 Act, which has been out-dated by the more ambitious targets of environmental gains and enhancement set out in the 25-year Environment Plan.

·       Local Nature Recovery Strategies for England.  A network of Local Nature Recovery Strategies (LNRS) will cover the whole of England, containing local habitat maps, a description of opportunities for biodiversity recovery or enhancements within the area, and potential measures addressing biodiversity priorities. The LNRSs would allow for the strategic geographical investment in nature conservation at locations where it will have the most impact.

Conservation Covenants

Part 7 of The Environment Bill (as introduced) sets out ‘Conservation Covenants’. A conservation covenant is an enforceable agreement between a landowner (and successors of the landowner) and a responsible body, signed by both parties, obligating the landowner and/or permitting the responsible body to do something on the land (i.e. in line with a Biodiversity Gains Plan) for a natural environment conservation purpose, such as habitat creation for biodiversity enhancement.

What Are The Opportunities For Developers Posed By The Biodiversity Elements Of The Environment Bill (As Introduced)?

Firstly, an increased and standardised ability across England to deliver BNG off-site via purchasing credits or entering agreements with local landowners could increase the commercial viability of a given development site, requiring less land within the site to be used for habitat creation and therefore increasing build density. Though, there are important biodiversity conservation, societal, and planning considerations to be had on this point.

An already emerging industry could be extended across England whereby, informed by Local Nature Recovery Strategies, landowners could broker habitat creation secured through Conservation Covenants to developers who cannot met their BNG 10% increase requirement within a given development site. This could be a profit generating use of certain land, such as low productivity farmland.

It cannot be said with certainty what the final contents of a potential ‘The Environment Act 2020’ resulting from the Bill would be, however we will be tracking its progress along with other agents of change in the ecology sector, and publishing their implications in our e-newsletter for developers and ecologists. You can sign up to our e-newsletter via the pop-up window on our website home page, here.