Environment Bill: New law would lock in biodiversity baselines for net gain

The pre-development biodiversity value of any site in England would be locked in place from this month as part of the government’s flagship policy to improve nature, according to the government’s landmark Environment Bill.

The bill, published yesterday, introduces  provisions that would govern air quality, waste, water, nature and biodiversity, subject to it passing through the House of Commons. 

Key to developers and environmental consultants is the introduction of “biodiversity gain” or biodiversity net gain, which will apply to all developments requiring an environmental impact assessment under the Town and Country Planning Act 1990.

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Town and Country Planning Act 1990

In force/
Current
Legislation
England, Wales
Published
03 Mar 2016

Commentary

07/07/2015 Amending Act (Planning (Wales) Act 2015) published., 27/10/2015 Amending Order (WSI 2015/1794) published., 22/02/2016 Amending Regulations (WSI 2016/53) published, in relation to Wales only., 27/04/2017 Amending Act (Neighbourhood Planning Act 2017) published.
02/11/2017 Amending Regulations (SI 2017/1012) published., 28/11/2018 Amending Regulations (SI 2018/1232) published.

Compliance Dates

24/05/1990 Received Royal Assent

Characteristics

Subject

Land and development

Source

OPSI (Office of Public Sector Information)

Affected Sectors

Mining and Quarrying Construction
ECM

Town and Country Planning Act 1990

Document Status: In force/Current

Scope: England, Wales

Commentary:

07/07/2015 Amending Act (Planning (Wales) Act 2015) published., 27/10/2015 Amending Order (WSI 2015/1794) published., 22/02/2016 Amending Regulations (WSI 2016/53) published, in relation to Wales only., 27/04/2017 Amending Act (Neighbourhood Planning Act 2017) published.
02/11/2017 Amending Regulations (SI 2017/1012) published., 28/11/2018 Amending Regulations (SI 2018/1232) published.

Compliance:

24/05/1990 Received Royal Assent

While the principle of net gain has been incorporated into the revised National Planning Policy Framework (NPPF), the bill would require developers to submit a “biodiversity gain plan” to local authorities when applying for planning permission that must be able to achieve a 10% uplift in the quality of the natural habitat damaged or destroyed, following  development. This will need to be maintained for at least 30 years. 

Some experts had worried that some landowners could be tempted to reduce the biodiversity value of their land prior to the implementation of the net gain policy, making it easier to achieve a 10% target, but the new bill has effectively ruled that out by setting a date of 15 October 2019 as the baseline from which the value of biodiversity will be applied, unless otherwise agreed between the developer and local planning authority.

“The bill seems to close the door on that worry, preventing landowners from ploughing every up before assessing the biodiversity of the site,” said Richard Arnold, director of Thomson Environmental Consultants.

READ MORE: 38 things you need to know about the Environment Bill

The bill would also introduce conservation covenants, legally-binding agreements to do or not do something on land with a conservation purpose or public good lasting for at least seven years, something Arnold describes as “necessary” to seeing the success of net gain carried through.

The bill would also strengthened the Natural Environment and Rural Communities Act 2006 by amending section 40, so that all public bodies must in future have regard to conservation and the enhancement of biodiversity.

If enacted, the bill would also place extra duties on local authorities to create a “biodiversity report”, summarising what action it has taken over five years to enhance biodiversity, and a “local nature recovery strategy”, which would include the council’s biodiversity priorities to support the government’s ambitions to create a Nature Recovery Network, in line with the  25-Year Environment Plan. 

While experts have welcomed the net gain requirement and the local nature recovery strategy, some people, such as Dr Sue Young head of land use planning and ecological networks for The Wildlife Trusts, believe it is undermined by its exclusion of nationally significant infrastructure projects.

Young said:  “We are disappointed that major national infrastructure projects will not be subject to net gain – this means that the new legal requirement to make developers actively improve nature will not apply to the most damaging schemes.”

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