26 May 2023
There’s been a flurry of recent activity from the Government in relation to the forthcoming mandatory Biodiversity Net Gain (BNG) requirement in England. In February they released their long-awaited response to the consultation on regulations and implementation, alongside some new guidance. In March, Natural England published the Biodiversity Metric 4.0 which includes a small sites metric.
One thing that is clear is Government still intends for the mandatory requirement to come into force for all major applications submitted in England this November, although secondary legislation is required to enact this.
What do we know?
The guidance and consultation response have provided clarity on some of the outstanding issues and has filled in some of the detail that was missing.
Key things we now know are:
Timescales: applications submitted from November this year for major development (in England) will be subject to the mandatory BNG condition, for ‘small sites’ (i.e. non-major development) this will be imposed on applications submitted from April 2024 and for NSIPs ‘no later than April 2025’;
Exemptions: development impacting habitats below a set threshold, householder applications and BNG sites will be exempt, whilst previously developed land, Change of Use and temporary won’t be exempt;
Section 73 applications: These will only be subject to the mandatory BNG requirement where the original permission was granted after BNG became a mandatory requirement;
Outline and phased permissions: the approach to delivery of BNG from the whole development on a phase-by-phase will be required up front but LPAs will have some discretion how and when delivery is achieved. There will be a requirement for approval of a biodiversity gain plan prior to commencement of each phase;
Mechanics: Biodiversity gains will be secured through a combination of planning conditions, planning obligations or conservation covenants and enforced primarily by the planning enforcement regime;
Biodiversity units: it is anticipated that a biodiversity unit market will develop, whereby any landowners will be able to sell biodiversity units (subject to meeting the relevant requirements) - see Government guidance for more information. If a development delivers a BNG of more than 10%, the excess units can be sold on the market;
Biodiversity Gain Site Register: this will be operated by Natural England and will record all off-site gains. Registration of off-site units will be mandatory, and will require a binding legal agreement with Habitat Management and Monitoring Plan (HMMP) to qualify. We are yet to see the register, however it is expected to be up and running by November;
Government credits: these will be sold by Natural England, the price will be set intentionally high to discourage their use, and they will be phased out once the biodiversity unit market has matured. The initial price will be published in May 2023;
Stacking: you can sell biodiversity units and nutrient credits from the same parcel of land relying on the same enhancements, however there are restriction on combining sale of biodiversity unit with other land management schemes. See guidance for info.
What don’t we know?
Whilst the recent guidance and response to the consultation is helpful and provides some much needed clarity, there is still a way to go to get the system up and running smoothly by November. In the consultation response there is acknowledgement that secondary legislation and further guidance is required in relation to a range of topics, and that the Government are working to resolve some issues raised. The key outstanding items are:
Biodiversity information: A Biodiversity Gain Statement must be submitted with the planning application, and a Biodiversity Gain Plan must be approved to discharge the BNG condition, however, we still haven’t seen templates for these documents. We are also still waiting on a HMMP template (which will be required for registration of off-site gains);
Outline and phased permissions: Secondary legislation and guidance is required to clarify and formalise processes for applying the BNG requirement;
Off-Site Gains: further guidance is required to clarify what constitutes “appropriate off-site biodiversity gains for a particular development”. The price of registering off-site gains is yet to be determined – a range of £100 to £1,000 is given. Secondary legislation is required in relation to processes for making and determining applications to the register;
On-Site Gains: there are uncertainties around timescales for provision and what threshold would trigger a requirement for a formal mechanism to secure gains
Exemptions: Secondary legislation is required to implement exemptions, including for impacts on ‘irreplaceable habitats’. Further consideration is being given to how to exempt ‘small scale self build plots’, whilst avoiding unintended consequences;
The long term: biodiversity gains must be maintained for at least 30 years, but what happens after that? The consultation response is clear that the intention is for the vast majority of gain sites to remain in some sort of “conservation management”, and suggests that landowners should take this into account. The mechanics of how this may be controlled are yet to be determined.
Will the new system work?
BNG is already being applied across large parts of the country at varying percentages so we know that a system can work. But will the system due to come into force on permissions for major development submitted from England in November work or is it over-designed and overly prescriptive? The key to its smooth running will be an early launch of the Biodiversity Gain Site Register, which is specified in the Environment Act as being necessary for the use of off-site biodiversity gains.
Get it touch if you’d like to discuss how to navigate your way through the BNG system
Gayle Black & Nicki Mableson
23 Mar 2023
The Environment Act 2021 set a clear commitment to clean up the country’s air, restore natural habitats, increase biodiversity and halt the decline in species by 2030. St Patrick’s Day delivered a milestone moment in this journey with the publication of a long awaited consultation on the Government’s proposals for replacing the process of Environmental Impact Assessment and Strategic Environmental Assessment. The consultation – which runs to 9 June 2023 - seeks to provide more detail on the suggested creation of ‘Environmental Outcome Reports’ which are referenced in the Levelling Up and Regeneration Bill (‘LURB’) as the proposed new domestic framework for environmental assessment post Brexit. The paper sets out a vision for:-
“…assessment to be more effective as a tool for managing the effects of development on the natural environment, supporting better, faster and greener delivery of the infrastructure and development we need.”
So does the paper achieve its aim of clarifying its proposed approach? To an extent – yes – and we welcome the wide ranging questions upon which the consultation seeks a response and the clear intent to engage with the industry over the coming weeks and months. However, there is a lot to digest and consider and to that end we summarise some of the highlights below. Key will be ensuring that, in bringing forward changes, the proposals do actually retain the very real value of the existing assessment system which ensures environmental considerations are at the heart of bringing forward the largest developments in this country. In other words, let’s make sure we’re not throwing the baby out with the bathwater.
We’ve summarised below some of the main proposals which we, along with doubtless the rest of the industry, will be reviewing over the coming weeks.
The consultation establishes more on what the Government proposes regarding environmental ‘outcomes’ which would be ‘high level’, established in secondary legislation and subject to parliamentary scrutiny and public consultation. The consultation explains it is intended that outcomes would be measurable and designed by environmental experts who have experience and knowledge of sectors. An organisation will be assigned to monitor the overall progress of a specific outcome and they will be reviewed on a regular basis to ensure relevancy.
The LURB places a duty on the Secretary of State to ensure that an outcomes-based approach does not reduce the overall level of environmental protection provided by existing environmental law. The Secretary of State can also consider other relevant material when setting outcomes, such as the Clean Air Strategy.
Based on the Environment Act 2021, outcomes would be backed up by a number of indicators which can be used to measure how a development contributes to the delivery of each relevant outcome. Indicators will be data sets based on underlying technical work and analysis, such as physical surveys and population counts, and will measure the expected change resulting from a development against the baseline condition. The consultation importantly recognises that for some outcomes a more qualitative assessment may be required. This sounds very similar to the current approach and one would hope that this could help assessors get up to speed with the new system quickly.
Guiding principles for outcomes
The consultation proposes a list of topics (focused on the elements of the Government’s Environmental Improvement Plan) which could be reflected as outcomes, as well as referencing the potential to consider how EORs could achieve health related outcomes. The list proposed will be familiar to those involved in environmental assessment already and includes biodiversity, air quality, landscape and seascape, geodiversity, soil and sediment, noise and vibration, water, waste, cultural heritage and archaeology. The consultation notes that further consideration is being given to how the outcomes-based approach can best support efforts to adapt to the effects of climate change.
The consultation suggests that there will be an attempt to try to avoid duplication between policy and assessment.
It is proposed that different environmental assessment regimes can develop their own tailored approach to assessment. For assessments within the Town and Country Planning and Nationally Significant Infrastructure regimes it is suggested that the approach could be to assess against all relevant outcomes; but to adopt a proportionate approach with only limited review where outcomes are not or are less relevant to a particular site.
Reporting on outcomes
The consultation proposes that the core component of the EOR is drastically shorter and easy to navigate for consultees. A suggested structure of an EOR within the planning regime notes it could include:-
An introduction which cross refers to the project description provided in a separate planning statement;
A short and high level summary of the reasonable alternatives and the mitigation hierarchy considered;
An assessment of the contribution of the project towards achieving an outcome, including residual effects identified through technical work, current baseline data, commentary on levels of uncertainty, proposed mitigation and monitoring; and
A summary of the cumulative effects of the project on the outcomes.
It is suggested that the technical analysis would be provided in separate and standalone reports rather than ‘buried in appendices’.
The consultation reinforces the Government’s commitment to seeking digitisation of planning services and identifies proposals to provide better access to all to data secured through the environmental assessment process.
Need for outcomes reporting
The consultation identifies that the screening process would be strengthened to minimise ambiguity; noting that determining when assessment is required carries the highest risk of legal challenge in the current regime. It is proposed to establish regulations which will ‘narrow the scope for discussion’ when borderline cases are reviewed which may or may not require assessment. A further review will take place on how this ‘narrowing’ may be best expressed. However the consultation suggests the distance to a sensitive receptor or the presence of a defined impact pathway could be used to screen, which, it considers, would place “protecting sensitive sites and species at the heart of all screening activity”, with the size of the project as the “secondary consideration”.
Strengthening Approach to Mitigation and Monitoring
The consultation records that “ensuring that all steps are taken to avoid damage and mitigate the impact of development is central to these reforms” and aims to do this by setting the ‘mitigation hierarchy’ of avoidance, mitigation and compensation directly into legislation for the first time. This could give more ‘bite’ to the current practice of seeking to embed mitigation during the design development stage. It is suggested that EORs will need to report how adverse impacts on the environment have been avoided during the design stages.
In an attempt to address ineffective mitigation, the consultation proposes an ‘adaptive management’ approach which allows mitigation to be adjusted following implementation where monitoring shows that progress towards an environmental outcome is not as expected. The consultation asks for comments on the challenges in implementation of this approach and it is easy to see how this is likely to generate considerable interest from the development industry.
The consultation explains that Government will be given powers to ensure any mitigation measures proposed will be monitored to ensure they are delivering the level of environmental protection envisaged in the EOR. Where expected outcomes are not met, remediation would be pursued and enforced.
Reporting against performance
The consultation concludes on the topic of reporting against performance, explaining that public authorities will be required to report on performance against specified environmental outcomes, helping to build a country wide picture on the effectiveness of environmental assessment.
Over the coming weeks we’ll be speaking with our clients and co-consultants to gather their ideas on how the reforms might revolutionise the process of environmental assessment and we’ll take a deeper look into the key issues raised by each of the Government’s questions. If you’d like to discuss the consultation and its potential implications with us, please contact a member of our EIA team.