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Building back greener?

Post Brexit, the UK government is replacing EU environmental law with home-grown environmental law.

Biodiversity is increasingly coming under the spotlight in this context.

COVID-19 has shown us all how just how important green infrastructure is. However, since the 1970s 41% of all UK species have declined and 15% of species in the UK are said to be threatened with extinction.1

Housing development has typically reduced, not enhanced, biodiversity.

What is the current biodiversity requirement for new developments?

We are already seeing clients undertaking Preliminary Ecological Assessments as part of the site acquisition process to ensure they can satisfy current planning requirements where enhanced ecology has been integrated into the local plan.

Under the National Planning Policy Framework, planning policies and decisions should contribute to and enhance the natural environment by, amongst other things, minimising impact and providing net biodiversity gains. This includes establishing coherent ecological networks that are more resilient to current future pressures.

However, there is no specific uplift in biodiversity gains that developing RPs have to achieve.

What’s changing for developing RPs/RSLs?

The Environment Bill, due to receive Royal Assent in Autumn 2021, amends the Town and Country Planning Act 1990 to mandate a minimum 10% Biodiversity Net Gain (BNG) as a condition of granting planning permission for all new developments in England.

How do you deliver the 10% BNG?

BNG will be measured using a biodiversity metric developed by DEFRA. You can provide the BNG in one of three ways:

  • on site via landscaping or green infrastructure;
  • off-site via the purchase of additional land; or
  • a combination of both.

Where you cannot provide either on site or off site BNG, the Bill proposes that you will be able to purchase statutory credits from the government as compensation. These will be invested in strategic biodiversity projects. It is expected that over time a competitive market will emerge of organisations offering habitat creation schemes.

If you deliver the BNG on site, then as the developer, you will need to register the site on a national register and maintain the BNG for at least 30 years (or put in place arrangements for it to be maintained for at least 30 years).

Will there be any exemptions?

It is thought that there will be exemptions for householder applications, permitted development, and some brown field sites.

Can a BNG be multi-functional?

Yes. It is possible to for the BNG to provide flood attenuation, carbon sequestration or recreation.

What should developing RPs/RSLs do now?

Plan ahead!

  • Sites you are buying now, may be affected by BNG when you come to develop them.
  • Carry out the necessary calculations and an ecological appraisal at the earliest opportunity (before you buy a site) to ensure planning permission is achievable.
  • Consider whether the purchase price needs adjusting to take into account the additional costs of providing on/off site BNG.
  • If appropriate, secure transfer/lease or rights for a minimum of 30 years as part of the land buying process.
  • Consider long term management costs of maintaining the ecological enhancements and put in place arrangements for the long-term management of the BNG.
  • Review your current assets – could current land holdings provide a “habitat bank” for ecological mitigation, including in urban areas.

With preparation and planning BNG could present opportunities for successful place making as well potentially increased land values.

1Biodiversity in the UK: Bloom or Bust, House of Commons Committee Report 30 June 2021

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