Out-Law News | 17 Jan 2022 | 5:13 pm | 5 min. read
The proposals, developed by the Department for Environment, Food and Rural Affairs (Defra), build on provisions in the Environment Act 2021 which provide that developers of projects to be consented under the Town and Country Planning Act 1990 or the Planning Act 2008 must deliver a minimum 10% BNG in the context of their developments.
There is now a clearer timeline for developers to work towards... Defra had indicated that it intends for mandatory BNG to be required for Town and Country Planning Act applications from November 2023 and for NSIPs by November 2025
According to Defra, BNG “means that habitats for wildlife must be left in a measurably better state than they were in before the development”.
Developers promoting projects under the Town and Country Planning Act must discharge a new BNG planning condition and the local planning authority must approve a biodiversity gain plan relating to the development in line with the new proposals.
Similarly, promoters of nationally significant infrastructure projects (NSIPs) under the Planning Act 2008 regime will face a new requirement to meet a BNG objective, to take effect after the government has published a biodiversity gain statement, or statements, that set out the details of the objective. For NSIPs, once the new arrangements are in place, the relevant Secretary of State will not be able to grant an application for development consent unless satisfied that the project concerned can meet the biodiversity gain objective.
The latest consultation concerns the “practical and legal implementation details of the new biodiversity net gain requirement for development”. The introduction of BNG requirements will not replace the current suite of statutory and policy protections afforded to protected sites and species, but rather work in conjunction with them. The weight to be given to other planning considerations such as legal obligations or planning policy as part of the decision-making process will also not be affected by BNG requirements.
Fiona Ross, an environment expert at Pinsent Masons, said: “There is now a clearer timeline for developers to work towards, with the consultation document indicating that Defra intends for mandatory BNG to be required for Town and Country Planning Act applications from November 2023 and for NSIPs by November 2025.”
With its newly-published consultation document (109 page/ 847KB PDF), Defra seeks the views of developers, planning authorities, environmental professionals and landowners on the proposals. In tandem with the consultation, new funding of £4 million has been announced to support local planning authorities and those authorities with planning oversight to prepare for mandatory BNG in England.
The consultation sets out a hierarchy for developers to apply to development projects to ensure that they achieve BNG in a way that is consistent with the relevant mitigation hierarchy, with the purchase of biodiversity credits from the Secretary of State as a last resort. Ross said that this is “broadly consistent with the approach that developers would generally seek to apply, but it is not clear whether the hierarchy will be enshrined in legislation or guidance”.
The government’s plans are for biodiversity gains and losses on developments to be measured in ‘biodiversity units’, and the proposals are for a metric that uses habitats “as a proxy for biodiversity and calculates units by taking account of the type, extent and condition of habitats”. Natural England’s biodiversity metric will be the reference point for mandatory BNG, and there will be further consultation on the metric before it is finalised for this purpose.
Ross said that, for NSIPs, the consultation “indicates that there will be a single ‘core’ biodiversity gain statement, which will be consulted on for the range of relevant types of NSIP”. Defra has said further bespoke statements for particular types of NSIP will be published if necessary.
The new statement or statements will initially set out the biodiversity gain requirement for all types of NSIP, the date from which the objective must be achieved and the stage of project design that the commencement threshold applies to. There is also the possibility that they will subsequently be integrated into relevant national policy statements (NPSs) when next reviewed.
As the biodiversity gain statement will be published no later than November 2023, according to Ross, “early indications are that we can expect a consultation on a draft biodiversity gain statement later this year”.
She said: “Interestingly, Defra is considering whether, for NSIPs, a distinction should be drawn between onsite habitats in the development area and any dedicated mitigation areas. This is to avoid the percentage net gain required also applying to environmental mitigation or compensation areas. Infrastructure developers should consider making representations on this in their response to the consultation.”
The consultation paper also indicates that there will be a further consultation in early 2022 on applying BNG requirements to the marine environment.
For Town and Country Planning Act applications, Ross said that the consultation proposes that ‘on-site BNG’ should be secured for delivery and commence no more than 12 months after the commencement of development. For ‘off-site BNG’, this should be commenced as soon as feasible – and no more than 12 months after the discharge of the pre-commencement BNG condition.
Ross said: “Any longer delay must be reflected in the biodiversity metric, which would result in a lower number of biodiversity units being generated and so more enhancement work required to be undertaken to meet the 10% BNG requirement”. As a consequence, “developers will need to consider the scope to deliver on-site and off-site BNG within these timescales and if not, adjust their entries in the metric accordingly”, she said.
According to the consultation paper, policy and guidance will encourage off-site biodiversity gains to be delivered locally to the development site, and this will also be incentivised by the biodiversity metric. Ross said: “The question of whether the developer has adequately considered on-site and local off-site options before seeking to deliver BNG further afield may be a relevant consideration when determining whether or not to grant planning permission or approve the biodiversity gain plan.”
Further guidance will be published to support the decision-making making process on development applications and “developers and promoters of development schemes will need to consider on-site and local off-site gains as a priority, and, crucially, be able to demonstrate that they have done so,” said Ross.
Robbie Owen, an infrastructure planning expert at Pinsent Masons, said: “Whilst November 2025 sounds a considerable way off, NSIP promoters will certainly have their work cut out for them in getting to grips with this new regime. There is a lot of detailed policy and related legal requirements still to come and to understand, and the sheer scale and nature of many NSIPs, including their linear nature, will present additional challenges in preparing for the consenting stage of these projects. These challenges will include finding suitable sites for BNG, when in the project’s development the BNG will need to be delivered and then maintaining it for probably at least 30 years thereafter.”
“In the meantime, before the new requirement even applies in law, NSIPs going through the DCO consenting regime will certainly still be expected to show that they are making every effort to achieve as much BNG as possible,” he said.
The consultation closes on 4 April 2022.
12 Nov 2021
30 Nov 2020