The Environment Bill


22 October 2019

Biodiversity net gain: what it might mean for developers and local authorities

The Government's much touted Environment Bill was formally announced as part of the most recent Queen's Speech, with the draft Bill being made available for review shortly thereafter.

The Bill brings together a number of environmental measures that this Government and the previous Government had consulted on and seeks to formalise them into law. Of particular interest for both developers and local planning authorities is the proposed requirement for new development to deliver biodiversity net gain.

The Bill proposes that biodiversity net gain is secured by way of an amendment to the Town and Country Planning Act 1990 that would, subject to some exceptions which are yet to be fully specified, deem a condition requiring the delivery of a 10% biodiversity gain to be applied to every planning permission issued for the development of land in England.

The proposed planning condition is a pre-commencement condition that would require two steps to be complied with before development can commence. The first is that a biodiversity gain plan is submitted to the local planning authority for approval, and the second is that the local planning authority has approved the content of that plan.

A new Schedule incorporated into the 1990 Act would set out the requirements of a biodiversity gain plan and also the matters against which local planning authorities are to asses such a plan. The draft Schedule provides that the Secretary of State may make further regulations in respect of determinations by local planning authorities of such conditions.

The proposed Schedule seeks to introduce some very important new concepts which are key to understanding how the required net gain is to be delivered in practice. The first of these is the 'biodiversity gain objective'. As drafted, this objective requires the post-development biodiversity value, measured using the proposed 'bio-diversity metric' to be 10% greater than the on-site pre development biodiversity value. The post development biodiversity can be provided on site or in whole or in part by using 'biodiversity credits' or, subject to satisfying certain criteria, off site compensation. It is envisaged that biodiversity credits are to be available for purchase by developers to fulfil the requirements of the condition where it is not possible to deliver biodiversity gains in other ways.

Whilst the Bill is currently at draft stage, and these therefore subject to amendment, it is clear that if these proposals make it into law, developers will find themselves with further conditions that require compliance prior to commencement and local planning authorities will be burdened with further administration. How such matters will impact on the delivery of development remains to be seen, but it is clear that developers and local planning authorities should be turning their minds to how to manage this new regime sooner rather than later to avoid costly delays further down the road.

In a subsequent article we will look at the conditions for offsite compensation and in particular at conservation covenants.

The content of this article is for general information only. For further information, please contact Edward Long or a member of Birketts' Planning and Environmental Law Team. Law covered as at October 2019.