The Environment Bill and Biodiversity Net Gain Delivery – What Planning Authorities Need to Know

The Environment Bill sets out the mechanism by which biodiversity net gain from development is to operate. Planning Authorities will have a duty to implement the requirement for developers to deliver biodiversity net gain (BNG) on all developments covered by the Town & Country Planning Act (1990).

Developers will be required to submit a ‘biodiversity gain plan’ with their planning application. They will have to secure, through the purchase of conservation credits, the means by which biodiversity net gain off-site is delivered. This will be on sites registered on a Government registry. Environment Bank has its own sites registry but will allocate its live sites (those generating conservation credits for purchase) to the Government registry. Our registered sites will be operated by Environment Bank for the benefit of Planning Authorities – making their delivery of the BNG duty frictionless.

Developers will also be required to register sites setup within their development site boundary if they choose to place a proportion of the total net gain requirement within their development site. Many developers may want to do as much on-site as they can, which is good, but it is critically important that we have good baseline date and good reporting in order to demonstrate to society that net gain is being achieved. If developers don’t monitor on-site then industry will be under-reporting their gains and adding to their costs.

It will be important for developers to understand that biodiversity gain provided on-site has to be managed for at least 30 years after the development is completed. There will therefore be a requirement for developers to put forward sufficient funding for this 30+ year period and the legally binding contractual means by which that gain is managed and by whom.

In Summary :

  • LPAs will be responsible for a duty to deliver biodiversity net gain for all Town & Country Planning Act development;
  • This means they will have to have a mechanism to deliver it;
  • Developers will need to produce a biodiversity gain plan to be submitted with their planning application;
  • Developers will need to have purchased conservation credits in accordance with the result of having the biodiversity impact accounting metric applied to their development before the planning application is submitted otherwise their application will be refused;
  • Where developers choose, or are required, to place some of the biodiversity net gain requirement within their development site boundary (on-site), this has to be registered on the Government’s active registry and the gains it delivers logged;
  • Developers will be required to set aside funding to maintain and manage all biodiversity net gain provided on-site for at least 30 years after completion of the development. This will likely take the form of an endowment or a bond.
  • Developers can alternatively purchase conservation credits eg from habitat banks set up by Environment Bank, thereby discharging their long-term liability and funding requirement. Such off-site areas would be registered on the Government’s registry (in our case by the Environment Bank).
  • Habitat banks will provide the ready-made solution, working in partnership with Planning Authorities.

Key Sections of the Environment Bill

The key parts of the Environment Bill that relate to the delivery of biodiversity net gain are Part 6 Nature and Biodiversity, and the supporting Schedule 14, especially sections 9(3), 13(2), 14(2) and 15.

It is made explicit that developers will be required to also register the biodiversity net gain provided on-site ie within their development site boundary (if they choose to put some of the net gain requirement on-site) on the national register managed by Government and to show how many credits that is delivering.  They will also be required to maintain and manage that biodiversity net gain for at least 30 years after the development has been completed (and by implication to provide funds for that management and maintenance, presumably through an endowment or bond). This in itself makes the discharging of their biodiversity net gain liabilities off-site, very attractive to developers.

The meaning and implications of the specific text in Schedule 14 is as follows :

9(3) …. essentially states that [refer to sub para 1a] the on-site biodiversity net gain provision has to be maintained for at least 30 years after the development is completed. This means that all on-site provision needs to be maintained (and by inference funded) for at least 30 years after completion. This would mean that most sizeable developments would need to allocate eg. 40 years of funding to any on-site biodiversity net gain provision. It would then be really attractive to them to use habitat banks instead of locking up their own land and paying for it for 30+ years.

13 (2) The [planning] condition is that the development may not be begun unless (a) a biodiversity gain plan has been submitted to the LPA; (b) the LPA has approved the plan. This means that a biodiversity gain plan has to be submitted and approved before planning permission is granted.

14(2) implies (at para e) that the biodiversity gain plan, which has to be submitted and approved by the LPA before development can begin, has to include ‘any biodiversity credits purchased for the development’. This means that the credits have to be purchased prior to submitting the biodiversity gain plan in order to satisfy the submission of the biodiversity gain plan which precedes planning permission being given.

15 sets out what is required of the LPA ie. what the LPA has to do. It also states that the conservation credits have to be purchased before the biodiversity gain plan is submitted.

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