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New Year, New Consultation: DEFRA launches consultation on Biodiversity Net Gain Regulations

With the New Year comes a new consultation to get our teeth stuck into;* and my goodness is there a LOT to chew over. 

This morning, DEFRA launched what I suspect may be the first of many consultations arising out of the Environment Act. First out of the blocks: Biodiversity Net Gain. 

The consultation, which can be accessed here, seeks initial views on how the legislative requirements for Biodiversity Net Gain are to be implemented within the planning system. 

The proposals cover everything from:

  • The scope of the regulations;
  • The types of development that are to be excluded from them;
  • How the regulations are to be applied to different types of schemes, such as phased developments; small sites and NSIPS; and
  • How the market for off-site credits is intended to work;  including proposals for Habitat Banking, additionality etc.

and as such will be critically important for years to come. In fact, at the risk of coming across a smidge overdramatic, this may be one of the most important consultations of the year. 

I have not had a chance to get into the fine detail of the proposals as yet,** but a few interesting points did jump out at me:

  1. Exemptions

The Government has significantly refined it's approach to the types of development that will be exempt from biodiversity net gain requirements. Exemptions are now currently only proposed for:

  • developments impacting habitat areas below a ‘de minimis’ (minimal) threshold
  •  householder applications; and
  •  change of use applications 

The plans to introduce exemptions for the following types of development, that had previously been discussed, have been dropped entirely:

  • brownfield sites which meet set criteria;
  • temporary permissions; and
  • developments for which permitted development rights are not applicable due to their location in conservation areas or national park 

Additional exemptions are being considered for  the creation of biodiversity gain sites, and self-build and custom housebuilding, but no firm decision has been reached on this as yet. 

2.  Outline Permissions and Phasing

The consultation (finally) recognises the issues that the current metric can cause for outline and phased developments. As such, proposals are being put forward to allow for a phased approach to providing biodiversity information and meeting relevant targets. 

The consultation proposes:

"that for outline and phased permissions we will ask the applicant to explain the strategy to achieve the biodiversity gain objective across the whole site and to demonstrate how this could be delivered on a phase-by-phase basis. 

This would include: 

  • the key principles that will be followed to ensure biodiversity gain commitments are achieved through subsequent detailed design
  • how biodiversity net gain delivery will be tracked on a phase-to-phase basis, including the target percentage gains to be delivered at each stage. For most phased developments, we intend to state in guidance that biodiversity gains should be ‘frontloaded’ into earlier stages. This will help to avoid the risk of net losses being caused by later stages being delayed or cancelled 
  • the approach to be taken in the event that subsequent phases do not proceed or fail to achieve their biodiversity net gain targets
  •  that the pre-development biodiversity value for the whole site will be agreed as part of the framework plan and used as the basis for agreeing the detailed proposals through subsequent applications pursuant to the approved development
  •  a mechanism to link the framework plan to subsequent applications pursuant to the approved development 

As we set the scope of biodiversity gain information to be submitted with these applications, we will have regard to the framework for handling and determining such applications including the matters which may be reserved when outline planning permission is granted. With respect to securing delivery of the biodiversity gain requirement, we propose to require through secondary legislation that a biodiversity gain plan would be submitted for approval prior to the commencement of individual phases of development." 

3. Small Sites 

A simplified biodiversity metric and extended transition periods are being proposed for small sites.

4. The Market for Creating and Trading Credits

There is a clear acknowledgement in the consultation proposals that setting up a successful market for off-site habitat creation credits will be complicated and require the involvement of multiple stakeholders.

In particular the consultation states that:

"The market for biodiversity units will not operate in isolation, and we are aware that landowners and managers are keen to understand whether they will be able to combine or ‘stack’ payments for different environmental services from the same parcel of land. Further information is set out in Part 3 ‘additionality’ of this consultation. 

We are aware that farmers want to understand how committing land for habitat creation or enhancement will affect their eligibility for Agricultural Property Relief and Business Property Relief. Work is underway to provide clear guidance on this"

The "Additionality" section of the consultation sets out proposals for how biodiversity net gain requirements may interact with:

  • statutory protected sites for nature conservation; and
  • payments for other environmental services;

which will be of interest to any landowners who are considering setting up 'donor' sites. 

The consultation closes on 4 April 2022. I strongly recommend that everybody (and I do mean everybody: landowners, house builders, developers, councils, ecologists) engages with it.  

If you have views, but do not want to put your own response in, then please feel free to send them to Claire or myself, and we will make sure that they are factored into our own response*!

* yes, this joke is the sole justification for the photo choice.... and yes, she has teeth now.

** the document is over 100 pages and, of course, it came out on a day when I had back to back meetings from 9am to gone 11am, which is fairly typical of my luck with these things.

*!Yes, we will be doing one of our own. It is THAT important. 

We want to know what you think about how biodiversity net gain will work in practice. This consultation sets out our proposals and asks questions about how biodiversity net gain will be applied to Town and Country Planning Act development, and, at a higher level, Nationally Significant Infrastructure Projects”