Introduction 

1.    Biodiversity is presently a key consideration in the planning system only where development is proposed on or nearby a site that is specifically protected, such as a SSSI. 

2.    The Environment Bill proposes to make biodiversity an overriding consideration throughout the vast majority of the country which is not subject to site specific protection. 

3.    Biodiversity net gain will be fixed as a mandatory standard in law, putting biodiversity centre stage in the consideration of development proposals. 

4.    This is the second of a two-part series of blog posts considering the biodiversity net gain provisions. The first part, which you can read here, examined the nuts and bolts of the proposed system, and identified the aspects of the proposed system that are to be dealt with in regulations and which have not been published yet. 

5.    In July the Government announced that a consultation on the regulations will launch later this year. At the time of writing the Environment Bill is at the Report Stage in the House of Lords.

6.    This blog post considers the challenges the new system could present to local authorities and developers and how they might be overcome. 

Local authorities

7.    Local authorities would be responsible for the administration of the new system, their costs apparently being reimbursed by central Government. 

8.    Officers throughout the planning department will require general training in the provisions. Training will be needed in particular for development management officers who determine planning applications under delegated powers or make recommendations on their determination.

9.    At the moment, the impact development may have upon biodiversity is capable of being a material consideration but there is no generally applicable legal requirement to attach overriding importance to harm to habitats. 

10.    Development management officers will need to be trained to understand the new system and its interaction with the Conservation of Habitats and Species Regulations 2017. Those regulations require appropriate assessment of development plans that may affect a protected site as well as protect specific species of fauna and flora and their habitat.

11.    Authority ecologists will need training in the use of the DEFRA Biodiversity Metric to be confident to scrutinise Biodiversity Gain Plans and where appropriate recommend that the Objective has not been met. The role of an ecologist employed by the authority will change and gain greater importance. Ecologists should seek out opportunities to shape plans at an early stage, for example within pre-application discussions.  

12.    Authorities will also need to be astute to the need to identify and prevent abuse in the system. There are at least two ways in which the net-gain objective could be purposefully avoided that authorities should be alive to.

13.    The first is through the clearance of a development site in advance of submitting a planning application to remove biodiversity value from the baseline of the assessment of biodiversity change.

14.    Where there are concerns about the pre-development biodiversity value set in biodiversity plans, historic records should be checked to establish their veracity, including analysis of historic development plan documents and historic satellite imagery and any evidence from those living locally to the site. The development management team should work closely with colleagues including in planning enforcement as appropriate.

15.    Secondly, it seems likely that regulations will be introduced to vary the degree of gain required to be achieved for different types of development where viability is a concern, and possibly some development types may be carved out of the system altogether.

16.    This creates the risk of developments being artificially divided to avoid the application of the net-gain objective. Authorities should learn lessons from their experience in applying EIA Law to avoid ‘salami-slicing’.

For developers

17.    The most significant concern of developers arising from the new system is likely to be the impact it could have upon the viability of their developments.

18.    It is difficult to be precise about the economic impact the new provisions could have across the development industry because of the likely variation in their application depending upon the type of development (see above). Although given that some local authorities already expect biodiversity gain (e.g. through local plans), this development ‘cost’ may have already been factored in.

19.    The consideration of biodiversity value and enhancement should take an enhanced place in the appraisal of a site as a potential site to acquire for development, and in pre-application discussions with the planning authority.

20.    There will need to be a greater emphasis when developing plans on reducing the extent of built development across areas with biodiversity value, and a greater awareness of the opportunities that exist across the site to enhance habitat, especially habitat that is of wider strategic importance.

21.    Developers should become very familiar with Local Nature Recovery Strategies (LNRS). LNRS are another new feature to be introduced by the Environment Bill. It is proposed that LNRS will comprise a statement of biodiversity priorities for the area and a local habitat map. They could be useful tools for developers to discover opportunities to enhance strategic habitat and thereby promote new development, as well as steering developers away from sites where biodiversity value is high. 

22.    It is inevitable that development within the countryside - where existing biodiversity value is likely to be higher than on brownfield sites - will become more challenging and complex as a result of these provisions.

23.    To mitigate the impact of the new system, developers that can afford it should be investing in the market that the new system will create to purchase gain benefits achieved on Biodiversity Gain Sites and Biodiversity Credits from Central Government. 

24.    This will enable development to proceed where the Net Gain objective cannot be delivered on-site.

Horatio Waller is a barrister at Francis Taylor Building.