The Environment Bill – Planning Implications: The Biodiversity Net Gain Approach

On 26th February, the Environment Bill (‘the Bill’) had its second reading in the House of Commons.

The Bill, which sets out the future governance framework for environmental law once the UK leaves the EU, also sets out specific environmental improvement measures.

The Government’s 25 Year Environment Plan, which would become the first ‘Environmental Improvement Plan’ under the Bill, promises to “strengthen existing requirements for net gain for biodiversity in planning policy”.

In planning terms, the Bill is significant as it goes some way towards achieving this by proposing to make the grant of planning permission in England subject to a general condition securing net gains for biodiversity.

This will be achieved by an amendment to the Town and Country Planning Act 1990 (‘TCPA’).

Biodiversity Gain Objective

The ambition is for development to enhance rather than diminish biodiversity. The biodiversity gain objective requires a 10% increase in the level of biodiversity after development compared to the level before development.

This is to be measured by a metric, as set out by the Department for Environment, Food & Rural Affairs, which uses habitats as a proxy for biodiversity value.

Biodiversity Gain Plans

Developers wishing to commence development must first submit a biodiversity gain plan to the relevant planning authority, including details of the steps to be taken to minimise the adverse effect of the development on biodiversity.

Development cannot commence until the plan has been approved by the planning authority.

Biodiversity Site Register

The Bill requires the creation of a public biodiversity gains site register, which must be maintained for at least 30 years after the development has completed.

It allows for biodiversity gains on the development site to be recorded, as well as off-site  gains which can count towards meeting the biodiversity gain objective.

Clause 92 of the Bill also makes provision for the Secretary of State to set up a system of ‘Biodiversity Credits’, whereby developers can purchase credits for the purpose of meeting the biodiversity gain objective.

Exceptions

Developments excepted from the general condition include all developments granted planning permission by the Secretary of State using a development order, including the General Permitted Development Order.

It may also be removed where the habitat is ‘irreplaceable habitat’; for phased development; or planning permissions granted under S73A TCPA (planning permission for development already carried out).

The Secretary of State also has the power to exempt developments from the general condition.

Implications for developers and planning authorities  

In making the grant of new permissions subject to the biodiversity net gain objective, the provisions of the Bill re-enforce previous updates to the National Planning Policy Framework in July 2018 which introduced the concept of biodiversity net gains to the planning system.

The Bill has steered away from issuing broad exceptions and even small sites will sit within the mandatory net gain approach. However, nationally significant infrastructure projects fall ouside the regime.

It remains to be seen in practice how the biodiversity net gain principles will work, including the interaction between on-site and off-site gains and the purchase of biodiversity credits.

What is clear, however, is that both developers and planning authorities will be affected by the requirement for biodiversity gain plans to be submitted as part of the planning process.

The Bill is now being considered by a Public Bill Committee and is expected to report to the House by Tuesday 5 May 2020. No indication has been given as to when the Bill is likely to come into force but we will continue to monitor Government announcements.

How we can help

Sharpe Pritchard’s Planning and Parliamentary team monitor new legislation before and during its passage through Parliament and advise planning authorities and developers on the full range of planning matters, including complex large scale developments. Talk to us about how we can help monitoring and advising on the effect that legislation will have on planning authorities and developers.

Contact

Alastair Lewis: alewis@sharpepritchard.co.uk

Alastair Lewis is head of the firm’s Parliamentary and Planning team and a Parliamentary Agent.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.

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