The Office for Environmental Protection (“OEP“) has told the UK Government, in response to its consultation on biodiversity net gain, that its proposals must be strengthened if it is to meet its ambitions to improve the environment.
Biodiversity net gain is a key pillar of the UK Government’s 25 Year Environmental Plan and its foundations were laid in the Environment Act 2021, passed by Parliament last November. Regulations will be brought into force that set out the detailed framework of how biodiversity net gain will operate in practice. Once in force, all developments granted planning permission (subject to certain exemptions) will be subject to a planning condition requiring a biodiversity gain plan to be approved by the local planning authority, prior to the commencement of the development. This shall set out how the development will deliver a biodiversity net gain of 10% against the pre-development biodiversity value.
The Department for the Environment, Food and Rural Affairs (“DEFRA“) is presently running a consultation on the contents of the Regulations and is aiming to bring the provisions into force in autumn 2023.
The OEP was set up by the Environment Act and part of its remit is to give advice to the Government on proposed changes to environmental law. In this capacity it has submitted a report to DEFRA in its response to the consultation. Although it welcomes the “overall ambition and thrust of the proposed approach”, it still believes that it could be further strengthened.
The OEP has suggested the following recommendations to DEFRA:
- The amount of biodiversity net gain in relation to each development (currently set at 10%) should be reconsidered. Although the OEP does not suggest a figure, it suggests that it is not clear that 10% will actually drive enhancement of biodiversity, rather than simply achieve no net loss.
- A separate system for terrestrial and marine net gain should be established. This is something that the Government is currently considering and a further consultation will be expected in the future.
- A plan should be communicated for the implementation of environmental net gain. Environmental net gain, one of the first goals of the 25 Year Environmental Plan, goes beyond biodiversity net gain to achieve increases in the capacity of affected natural capital to deliver ecosystem services. The Government is yet to state when environmental net gain proposals will be published.
- Continued research of the approach of other jurisdictions is required. According to the OEP, over 100 countries worldwide have adopted similar policies. Learning from the problems they have encountered in implementing a biodiversity net gain policy would assist the UK to get it right.
- A strong system of governance of the implementation of biodiversity net gain strategies needs to be put in place. The DEFRA is silent on this in its consultation and the OEP would like to see more detail on the oversight of biodiversity gain plans.
- Alongside good governance, resources will be vital. As with point 4 above, the UK can learn from international experience where poor resourcing has led to poor delivery. It is no secret that local authority resources are stretched and the UK also suffers from a shortfall of trained ecologists if it is to successfully a biodiversity net gain strategy nationwide.
- Only realistic and deliverable biodiversity net gain proposals should be accepted. There will be a lot of uncertainty around the delivery of a lot of schemes. Common pitfalls will likely include overstating the capacity of restoration science, unpredictable events affecting the likelihood of success, reliance on subjective judgement in the absence of data, establishing baseline conditions and how the metric will change as monitoring, enforcement and research updates. Only realistic proposals should be accepted and these should then be closely monitored with an awareness of the common issues noted above.
- All Nationally Significant Infrastructure Projects (“NSIPs“) should deliver 10% biodiversity net gain. The Government states in its consultation that some types of NSIP may not be able to deliver 10% and in such a scenario it may be acceptable to deliver a lesser amount. However, they have not given any justification for this approach. Many NSIPs, by their very nature, are some of the most environmentally damaging projects.
- The way of calculating the pre-development value of a site and the amount of biodiversity net gain to be delivered uses a “Biodiversity Metric”. This metric is now in its third version. The OEP is still concerned that under the metric the area of habitat created could be less than the area of habitat impacted based on promises of improvements to the condition of the area, which it believes to be uncertain.
- The OEP believes that the use of conservation covenants may have a significant role to play to support biodiversity net gain (for further information about conservation covenants in practice, read my colleague, Ben Stansfield’s analysis here). However, they have concerns that as land changes ownership, the compliance with conservation covenants may become weaker. They suggest that a registered “keeper” could be put in place who will oversee compliance with a conservation covenant over its lifetime (which will be at least 30 years). Another suggestion by the OEP is to incorporate mechanisms such as advanced funding commitments, to protect against problems of companies ceasing to exist or lacking the necessary resources to carry out the long term obligations contained in conservation covenants.
- The Government should review the implementation and enforcement of biodiversity plans across England every five years as a minimum. We await details on this process from the Government and how regularly biodiversity net gain implementation and enforcement will be reviewed.
If you have any questions at all, please get in touch.
About the author(s)
Nick is a senior associate based in Gowling WLG's London office, specialising in environmental and planning law.