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Planning matters

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Does the Biodiversity Net Gain consultation deliver?
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 5th April 2022. The responses to the consultation will help shape secondary legislation, policy and guidance, however, indicative timescales for these are not provided.   Lichfields experience with BNG 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 thoughts on the proposals 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: 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 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 5th April. Image credit: Stephan Eickschen via Unsplash  


Adding Value? Is there a role for a Biodiversity Net Gain Assessment in an EIA
Biodiversity, the variety of all life on earth, is in steep decline both nationally and globally and unless this is addressed quickly there could be extreme consequences from whichever end of the lens you look at it. One way that the Government intends to address this is through the requirement for all new developments in England to deliver Biodiversity Net Gain (‘BNG’). In short, this means that development will have to leave biodiversity in a better state than it in was beforehand. This requirement will be introduced by the Environment Bill, which is due to be enacted later (autumn) this year. Once enacted there will be a two year transition period, after which all planning permissions in England will be subject to a mandatory condition that requires the delivery of a 10% net gain in Biodiversity from the pre-development baseline position. To make this system work Defra has developed a metric which uses habitat features as a proxy measure for Biodiversity and a straight forward calculation to give a numerical value to a site’s baseline Biodiversity value and its post development value. The assessment of a development’s baseline and post-development biodiversity value is known as a BNG Assessment. An Environmental Impact Assessment (‘EIA’) is an assessment of the likely significant impacts of a qualifying development on the environment undertaken in accordance with the Town and Country Planning (EIA) Regulations 2017. It is a decision making tool designed to protect the environment by ensuring that, when determining a planning application, the decision maker has full knowledge of the development’s likely significant effects on the environment, and takes this into account when making their decision. EIAs can cover a range of technical topics depending on the location and nature of the development, and for each topic the EIA contains a technical assessment of the likely effects. Biodiversity, or Ecology, is often included as a technical topic in an EIA which begs the question of whether there is a role for a BNG Assessment in an EIA, and if so what this could be. Should the BNG quantification feature in an EIA given that there will soon be a mandatory requirement to offset losses and deliver a gain? It also leads to another question we in the Lichfields EIA team have been considering, which is whether and how the EIA should report on compensation and enhancement measures more widely. So, how could the BNG Assessment fit into an EIA Biodiversity Chapter? Well, the assessments are fundamentally different in a number of ways which means that it is not simply a case of ‘slotting in’ the BNG Assessment to the biodiversity assessment of an EIA. The table below shows the key differences between the assessments: Table 1: Key differences between BNG and EIA Ecology assessments In summary, the biodiversity assessment within EIAs considers the potential direct and indirect impacts of the development on habitats and species on the site and beyond. BNG Assessments, on the other hand, are relatively narrow quantitative assessments of direct impacts on habitats on the site plus any known off site habitat creation or enhancement. These key differences are important and mean that the BNG Assessment doesn’t fit neatly in the technical biodiversity assessment of an EIA. It is important to note that both types of assessment are useful and important and that the differences in their scope and methodology are reflective of their purposes, and the policy/decision making goals they aim to address. Despite these differences, the EIA and BNG requirement share a common strategic aim – to lessen the impact of development on the environment, and in the case of BNG for development to positively contribute to the state of the environment. Therefore, it seems illogical to entirely separate the two, although it is important to understand how a BNG Assessment can feed into an EIA in a way which is both relevant and effective. BNG actively encourages developments to follow the well established mitigation hierarchy to first avoid harm, then to minimise it, then to mitigate any harm and finally to compensate for any harm to habitats. If developers are unable to reach BNG then they will be required to purchase the necessary ‘biodiversity credits’ to deliver a 10% net gain from their baseline position. The financial implications of BNG are significant for developers, and so undoubtedly it will influence how schemes are designed – not just in terms of avoiding loss, but also in terms of delivering areas of habitat enhancement or creation. The enhancements created to satisfy the BNG requirement could have beneficial effects on aspects of the environment other than ecology which are often considered in EIAs such as the water environment and landscape. So, having considered the above, is there a role for BNG Assessment in an EIA? The short answer in my view, much of the time is yes, however, the reality is more complicated than that. The EIA purest may argue otherwise and ask whether a nationally set mandatory requirement to off-set to a pre-imposed standard (whether it be for biodiversity or anything else) a true (and necessary) measure of environmental effect for the purposes of EIA or should it instead sit outside of the process, as a response to policy and legislation? As set out above, there isn’t a clear role for BNG Assessment in the technical assessment of the impact on biodiversity within an EIA, albeit there must be consistency in terms of establishing the existing on site habitats. However, there is an important role that a BNG Assessment can play in providing context about the development and establishing baseline conditions. A good EIA should tell a story about the development in question – why it’s needed, how its design has evolved and what measures have been incorporated to avoid or mitigate potential impacts on the environment. As set out above, the requirement to deliver BNG will influence the design of developments including their mitigation and enhancement measures and it is important not lose this rationale in the EIA; these measures can be discussed in the design evolution section of an EIA. If the benefits are integrated into the design of the scheme they will become primary mitigation and as such will be taken into account in the assessment of environmental effects. There is a wider trend emerging within EIAs to include discussion of compensation or enhancement measures in other disciplines, for example the developer may commit to contribute to a local air quality improvement scheme. These ‘enhancement’ measures would not normally feed into the technical assessment of an EIA, but would be relevant to the overall contribution a development makes to an area. Their use is likely to increase as environmental lobbying groups continue to apply pressure to the Government to go beyond requiring Biodiversity Net Gain from new development and to push for Environmental Net Gain. There is a question, therefore, as to whether mitigation and monitoring sections of EIAs should be expanded to include compensation and enhancement measures? The Government have recently announced that they intend to make comprehensive changes to the English Planning system, and these will likely encompass changes to the way environmental assessments are applied in the planning system, so it may well be that there is a greater role for BNG Assessments in Environmental Assessment in the future. Watch this space…