What Next For Urban Communities? Biodiversity Net Gain

For his final blog in the series, our senior planner, Aaron Henecke summarises key takeaways from one of the breakout sessions at the Landmark Chambers Land Use Conference. Led by James Maurici KC and Nick Grant, this discussion covered Biodiversity Net Gain (BNG) and the six main ‘issues’ for landowners, developers and contractors to be aware of…

BNG as a Planning Benefit

The session opened with a question – can BNG be seen as a ‘planning benefit’ if it is required by policy and legislation?

As reported by my colleague, Hannah Fawdon in her?post from March, the Environment Act 2021 will set a requirement for all new developments to provide a 10% BNG; however, the full details are still to be worked out. That said, BNG is alluded to in the NPPF and is beginning to find its way into Local Plans. For instance, Milton Keynes Council’s Plan:MK (2019) Policy NE3 requires development proposals to demonstrate BNG wherever possible, albeit without setting any percentage targets.

Inspectors have been attributing weight to the benefits of BNG during appeals, but the amount of weight may start to shift as policy standards become more prevalent. Interestingly, affordable housing continues to be given considerable weight in decision-making as a public benefit despite its prevalence as a requirement in local plans. So, why should BNG be any different?

The Environment Act 2021

Whilst yet to come into force, the Environment Act 2021 goes further than just requiring a 10% BNG on developments and instead introduces a raft of changes to existing legislation to secure the mechanisms for delivering biodiversity. This includes a standard ‘pre-commencement’ condition requiring approval of a ‘Biodiversity Gain Plan’, as well as new systems for biodiversity site registers and biodiversity credits.

The devil is in the detail, which in this case has yet to be fully worked out. But it is clear this will have implications for site appraisals, scheme designs, financial viability, legal agreements and construction programmes for most developments in the future.

The BNG Hierarchy

Similar to the systems in place for?habitats and nutrient neutrality, a ‘biodiversity hierarchy’ will require developers to first explore providing BNG on-site, before then considering securing BNG off-site or through the purchase of biodiversity credits, and only where on-site provision is insufficient or infeasible.

This then presents an opportunity for landowners to consider registering their sites as ‘Biodiversity Gain Sites’ where developers can agree to pay for the costs of biodiversity improvements, to be secured and managed for an extended period of time (minimum 30 years). This will likely be most attractive to landowners with rural or Green Belt sites, where the prospects of receiving permission for housing or other developments are poor.

For developers, Biodiversity Gain Sites offer a potential solution for on-site BNG constraints, but the expectation will be to look at local options first before those further afield. Off-site options may either come through other land owned by the developer or through other registered sites, but will need to be secured through S106 agreements / Unilateral Undertakings or conservation covenants. And, of course, will come at a price.

Moving Targets

Whilst the Environment Act 2021 is targeting a minimum 10% BNG, local councils will be encouraged to set higher thresholds within their Local Plans. In addition to keeping abreast of these moving targets, developers and consultants will need to remain up-to-date with the latest biodiversity metrics from Natural England and Defra. Biodiversity Metric 3.1 is currently the industry-standard, but version 4.0 is on the horizon and so it’s important to regularly review this with a biodiversity consultant.

If you would like to understand how BNG might impact your land or development, contact me at?[email protected]