Can planning achieve more development AND more biodiversity?

In planning decisions, biodiversity and development are usually treated as conflicting interests which need to be balanced. You build houses, you lose biodiversity. However, a new consultation attempts to turn this attitude on its head, by proposing a system where the process of development will achieve a net gain in biodiversity.

A consultation on the proposed new scheme was published on 2 December 2018 by the Department for Environment, Food and Rural Affairs ("Defra") and the Ministry of Housing, Communities and Local Government ("MHCLG"). Under the system all new developments that would otherwise result in a loss or degradation of habitat will need to demonstrate that wildlife habitats have been enhanced and left in a measurably better state post-development (with limited exceptions for permitted development, home extensions and brownfield sites). The consultation suggests a 10% improvement. If this is not possible, a tariff would be applied.

So how would these scheme work? Developers and local authorities will be familiar with contributions to provide infrastructure or community benefits in the form of s.106 Agreements or Community Infrastructure Levy (CIL). However, on or off-site biodiversity gains have - until now - only been operated voluntarily. Under the proposed new rules, developers would be required to assess their sites' habitat before submitting plans. Then, as a part of pre-application negotiations, they would need to demonstrate:

• where the required biodiversity improvements would take place (ideally on-site, and if not nearby) and
• how biodiversity would be improved (e.g. through the creation of green corridors, tree planting or local nature spaces).
• The tariff would only apply to those scenarios where there were now suitable onsite or local compensation opportunities. The consultation suggests a figure between £9,000 and £15,000 per biodiversity unit. This would go towards funding both strategic and local biodiversity priorities, again with the view of ensuring an overall net gain in biodiversity.

As well as their responsibility assessing the proposals put forward by developers, local authorities would also be required to identify suitable opportunities for habitat improvement in their Local Plan.

There are three parts to the consultation:

• A consideration of the objectives of the proposed 'net gain' policy;
• An examination of the core concepts of biodiversity and environmental net gains, along with those aspects of natural capital relevant in developing an environmental net gain approach; and,
• An assessment of how to mandate and implement biodiversity net gain for development (e.g. measurements, delivery and monitoring mechanisms) as well as any sites which should be exempt from the rules.

The consultation closes on 10 February 2019.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.