DEFRA Consultation on Biodiversity Net Gain

In January, Defra released their latest consultation on mandatory biodiversity net gain in relation to the Environment Act 2021. Although we’ve covered biodiversity net gain in previous articles, here’s a quick reminder of its definition in relation to development projects: “habitats for wildlife must be left in a measurably better state than they were in before the development” (Defra, 2022).

The current consultation is open until 5 April 2022 and focuses on the proposed practical and legal implementation of biodiversity net gain. In this article we take a look at the proposals and timeframes for new planning applications under the Town and Country Planning Act 1990 (this excludes Nationally Significant Infrastructure Projects).

The Environment Act sets out the framework for biodiversity net gain; however, secondary legislation, policy and guidance are needed in order to set out the details and the next steps for its implementation.

Requirements
The planning requirements in relation to biodiversity net gain for the majority of residential and commercial developments comprises achieving a 10% net gain in biodiversity compared to the baseline value pre-development. The biodiversity net gain planning condition must be discharged prior to development commencing, which is achieved through the approval of a biodiversity net gain plan submitted to the local planning authority at the application stage. The core information required (as stated in the consultation document) includes:

- The pre-development biodiversity value
- The proposed approach to enhancing biodiversity on-site, and
- Any proposed off-site biodiversity enhancements (including the use of statutory credits) that have been planned or arranged for the development

The core biodiversity net gain information should be submitted alongside a planning application and a complete biodiversity net gain plan should be finalised and approved before development commences.

Mandatory biodiversity net gain is additional to existing biodiversity/environmental protections and requirements. The 10% mandatory net gain requirement is seen as the minimum to be achieved.

Timeframes
The intention is that mandatory net gain for new planning applications will begin in November 2023. The transition period for ‘small sites’ is anticipated to be slightly longer than this (up to 12 months).

On-site biodiversity gains should be secured for delivery within 12 months of the development starting or, where this is not possible, before occupation. Off-site works are to “commence as soon as is feasible, and no more than 12 months after the discharge of the mandatory pre-commencement biodiversity net gain condition”. Biodiversity gains off-site must be maintained for at least 30 years after completion of the works to create or enhance the habitat.

Exemptions
The following exemptions are currently proposed:

• Developments impacting habitat areas below a ‘de minimis’ (minimal) threshold

• Householder applications

• Change of use applications

With regards to sites that are statutorily protected through nature conservation designations, Defra have stated that there is not an intention to make biodiversity net gain requirements for development in these sites exempt. The requirement for biodiversity net gain will be “separate and additional to any existing legal or policy requirements”.

For ‘irreplaceable habitats’ (e.g. ancient woodland), the proposal is to exclude these from biodiversity net gain requirements. These habitats will instead be subject to bespoke compensation – the development of further guidance on this is proposed.

Delivery
There is quite a lot of detailed information in the consultation document regarding options for delivery of biodiversity net gain (on-site and off-site) and additionality (relating to increases in social value), which will not be covered in detail in this article.

Monitoring
Monitoring will be required to ensure that net gain proposals for schemes are delivered. Monitoring requirements will be set as part of planning conditions and it will be the landowner’s or developer’s responsibility to ensure that these obligations are fulfilled.

If you would like to discuss biodiversity net gain requirements in relation to your project, our experienced ecologists are on hand to assist.