Enhancing biodiversity
Strategies must include biodiversity priorities (for the recovery or enhancement of habitats and species), proposed measures and a local habitat map of areas of importance for biodiversity.
A ‘general biodiversity objective’ is to be introduced for public authorities in England requiring them to conserve and enhance biodiversity, and to consider what action can be taken to do so, including by introducing policies and objectives. To assist with this, there are to be new requirements for strategies and biodiversity reporting and for biodiversity net gain in the planning system.
On 11 January 2022, the Government launched its consultation on Biodiversity Net Gain Regulations and Implementation which will run until 5 April 2022. Please see our guide here.
Strategies & reports
Authorities must have regard to local nature recovery strategies, and any species conservation strategies (for flora or fauna) and protected site strategies prepared by Natural England - the Government will introduce guidance on this.
Local nature recovery strategies will be prepared for all of England, by ‘responsible authorities’ appointed by the Government (which may include local authorities, the London Mayor, Natural England or others) to build a national Nature Recovery Network. Strategies must include biodiversity priorities (for the recovery or enhancement of habitats and species), proposed measures and a local habitat map of areas of importance for biodiversity. The Government must publish a national habitat map identifying national conservation sites.
Local planning (LPAs) and many other authorities (not parish councils) must produce biodiversity reports summarising the action taken and future plans, with data. LPAs must also explain steps taken to carry out the biodiversity gain functions set out below.
Planning condition
From a date to be determined (expected in late 2023), planning permissions granted for development in England shall be deemed to be granted subject to a condition that, before development commences, a biodiversity gain plan must be approved by the LPA. A similar system will also apply to development consent orders for nationally significant infrastructure projects. Many authorities are already seeking net gain in association with planning applications.
This requirement links to a biodiversity gain objective to be set for development for which permission is granted, whereby the biodiversity value attributable to the development (including on-site gain or loss, off-site gain allocated to the development and biodiversity credits purchased) must exceed the pre-development biodiversity value (generally at the date of the application) of the on-site habitat by 10% (which may be increased by regulations). The biodiversity gain plan must set out how this is to be achieved. Regulations may set out different procedures for phased permissions.
Any new on-site habitat must be secured by condition, s106 obligation or conservation covenant and maintained for at least 30 years. The off-site habitat must be secured by s106 obligation or conservation covenant and be recorded in new biodiversity gain site registers.
The Government has already produced and revised a metric (currently v3) for measuring biodiversity value to facilitate the new system. There is real concern that the provisions may disincentivise owners to enhance habitats and biodiversity ahead of seeking permission. However, activities carried out without permission with the result that the biodiversity value is lowered can be ignored. There is also provision for regulations to be made to exclude the application of the system to irreplaceable habitats.
Credits
Arrangements can be made by which a developer can purchase a credit from the Government to meet the biodiversity gain objective. Those arrangements will include applications, the amount payable and reimbursement for development that does not proceed. Payments must be expended on habitat enhancement, land acquisition or administration costs. The Government must publish reports at least annually. Where credits are relied upon, the biodiversity gain plan must specify that the credits have been purchased.
Conservation covenants
New provisions coming into force in September 2022 will allow for ‘conservation covenant agreements’ made by deed between landowners (with freehold or leasehold interests of more than 7 year) and responsible bodies (being the Government or bodies designated by the Government, including local authorities, other public bodies, charities or other body with conservation purposes).
The deeds must be for a conservation purpose for the public good. Conservation can cover natural environment or resources, or places of archaeological, architectural, artistic, cultural or historic interest. Covenants can be to do or not do something or allow the responsible body to do so. They will be local land charges, apparent on searches.
As a default, the covenants would apply indefinitely for freeholds (or the length of the lease if applicable) unless a shorter period is specified. Like s106 obligations, they will ‘run with the land’ and bind successors (save those with short tenancies). Enforcement mechanisms include specific performance, injunction and damages and the courts must take account of public interest. Obligations may be discharged by agreement or by the Upper Tribunal.
Registers
Regulations may provide for public registers of biodiversity gain sites, where a conservation covenant or planning obligation requires works to be carried out for habitat enhancement to be maintained for at least 30 years (which can be changed by regulation) and to be allocated to developments. Landowners seeking to benefit from these provisions will need to register their sites.
The Government has suggested that there will be a 2-year transition period before the above provisions securing net gain come into effect. In the meantime, many planning authorities are also using the biodiversity metric and requiring net gain through planning condition or s106 agreement.
There must be annual reporting and interim targets to secure an “appropriate contribution” to the long-term targets, with data collection to monitor environmental improvement and progress.
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