Subject to parliament approving the recently published Environment Bill, significant changes to laws relating to air quality, water resources, waste management, nature improvement and chemicals will be made.
Among them is the introduction of biodiversity gain, which will apply to all developments requiring an environmental impact assessment under the Town and Country Planning Act 1990.
Under Schedule 7A of the bill, developers would need to submit a biodiversity gain plan to a local authority before seeking planning permission.
A plan must demonstrate how the development would achieve a 10% uplift in the predevelopment biodiversity value of a site, including details of any proposed offset measures or biodiversity credits purchased from the government.
But planning experts at law firm Shoosmiths say that the new biodiversity measures could conflict with the government’s stated aim of reducing the number of conditions placed on planning permissions.
Angus Evers, legal partner at Shoosmiths, told ENDS that the requirement to submit a biodiversity gain plan prior to building, rather than as part of the planning application itself, could in fact create a chilling effect on housebuilding.
Evers said: “You’re going to have to do some sort of assessment of the biodiversity of the site at the application stage in order to work out if the scheme is viable or not. And if as a developer you have to deliver a 10% net gain, you’re not necessarily going to bother going through the planning process if you know that you won’t be able to deliver that.”
The government released a biodiversity gain impact assessment alongside the Environment Bill, concluding that the policy would create a direct cost to developers of £19.9m annually. The overall estimated cost would be in the region of £199m each year, according to the assessment, but the government expects 90% of the scheme’s costs to be absorbed into land prices.
Not everyone agrees.
Andrew Whitaker, planning director of the Home Builders Federation, believes net gain could make some schemes unviable, particularly in the north where profit margins on land values are often slimmer than in the south east of England.
Whitaker said: “While we see biodiversity gain as integral to the planning system there will have to be some sort of flexibility in there. How are you going to make that money in the north, for example, where there are some sites where the land value is nothing or negative?”.
The concerns are shared by Nicola Johansen, group sustainability manager at housebuilder Redrow. She believes the policy is going to be challenging to achieve on some developments, but less so on others, depending on the existing habitats and other local authority requirements for the development.
Johansen said: “I think a lot of the details will be in the regulations, including arrangements for sites with existing planning permissions, the transition period and how it will sit alongside protection of existing designated sites.”
However, some are more optimistic, believing biodiversity gain can help provide certainty in the planning system, rather than being seen as an onerous burden on developers.
The RSPB’s senior planning policy advisor, Juliette Young, said it could create “a system where, if it is done well, it will speed up development due to less objections [arising during] the planning process as people will be able to see that developers are giving back in the form of net gain.”