Planning matters

In late January, DEFRA launched a consultation on ‘Biodiversity Net Gain Regulations and Implementation’ which provides us with a clearer picture of how the soon to be mandatory requirement for Biodiversity Net Gain (BNG) will be applied and regulated.

The Environment Act introduces a requirement on nearly all planning permissions in England to deliver a 10% gain in biodiversity value, through the implementation of a mandatory pre-commencement condition on all planning permissions. The condition, which is set out at in Schedule 14 of the Act, will require a Biodiversity Gain Plan to be approved by the determining authority prior to commencement of development. It is currently anticipated that the condition will start to be imposed in November 2023.

The closing date for the consultation is 5^th April 2022. The responses to the consultation will help shape secondary legislation, policy and guidance, however, indicative timescales for these are not provided.

 

While the mandatory requirement to deliver a 10% net gain in Biodiversity is a new requirement, the principle of delivering some BNG on development sites is already being requested by many Local Authorities. At Lichfields we have been assisting our clients with different aspects of BNG.

We have worked proactively with Local Authorities to develop suitably worded planning conditions and legal agreements to secure delivery of local BNG targets. We regularly work with ecologists to advise our clients on options for delivering biodiversity on and off site. We are working with clients (alongside statutory consultees) to develop co-ordinated strategies for delivering their combined BNG requirements from a number of sites. At this current, transitional time, there is somewhat of a vacuum in how planning applications and permissions are to respond to securing no net loss, and then net gains, in biodiversity value. We are filling that vacuum with interim solutions until DEFRA publishes its secondary legislation and guidance.

 

Our experience to date has informed our thinking on the proposals set out in DEFRA’s current consultation, which raises a range of issues with the potential to affect landowners, developers and local authorities.

Whilst I do not repeat the content of the consultation here, we would be more than happy to advise on it and how it could affect your interests. It is evident that the BNG requirement will create opportunities for some, whilst present challenges to others.

We wholeheartedly applaud the aim of the BNG objective and welcome the opportunity to feed into the development of the system designed to achieve it. We have been, and are continuing to talk directly to DEFRA and the agencies, Natural England and the Environment Agency about the practicalities, legalities and commercial implications (in respect of viability and delivery of developments and planning permissions). We recognise that biodiversity is in decline in this country and that the development industry has a role to play in trying to halt and even reverse this trend. It should not be at the expense of introducing uncertainty and delay into the planning application and plan-making processes, however.

We and our clients are, therefore, asking:

1. whether the system, as a whole, will be ready to implement and deliver BNG by November 2023, or whether this is too soon for a mandatory requirement to come into force; and
   
   
2. whether the current intention for the BNG requirement to be non-negotiable (in so far that the condition cannot be amended unlike most other planning conditions) will threaten the viability of certain developments.

Please contact me, Heather Overhead, or Anthony Greally for more information or for advice on submitting responses to the consultation before 5^th April.