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Environment Bill 2019 nature and biodiversity Shoosmiths reaction

Following the publication of the government’s Environment Bill this week, Shoosmiths planning expert Matthew Stimson warns that new measures to promote biodiversity actually work against plans to reduce the number of conditions on planning permissions.

He says: “The introduction of a new mandatory pre-commencement planning condition clearly runs contrary to the government’s wider commitments to significantly reduce the number of conditions imposed on planning permission and to reduce the delay between the grant of planning permission and a start on site.

“Given those commitments, it is interesting that the government has chosen to secure the requirement to submit the plan prior to commencement rather than as part of the planning application itself. The Bill would allow the Secretary of State to make regulations as to the procedure to be followed in obtaining approval of a biodiversity gain plan (including timescales and rights of appeal), but there is no doubt that it will place an additional administrative burden on both developers and local authorities.

He says the industry would now watch with interest to see what forms of development would be excluded from the requirement by regulations.

“No details have been provided,” he added. “However, it is conceivable that the exceptions could be framed by reference to factors such as location, scale and the type or class of development proposed. Locational factors might include whether the site is a registered brownfield site or it is within an enterprise zone or designated urban setting.”

The new measures, which cover biodiversity in England only, would be introduced under Part 6 and Schedules 15 and 16 of the Bill.

The key innovations include:

  • a new mandatory condition on planning permissions requiring a plan to be approved prior to commencement of development for achieving a net biodiversity gain;
  • the introduction of a biodiversity gains site register for land capable of being enhanced to enable development to achieve the required net biodiversity gain;
  • a system for developers to buy biodiversity credits from the government in order to achieve the required net biodiversity gain;
  • amendments to the Natural Environment and Rural Communities Act 2006 that would put local authorities under a statutory duty to “enhance” as well as “conserve” biodiversity and to publish reports on how the duty is being met;
  • a requirement on local authorities to prepare Local Nature Recovery Strategies for their area; and
  • amendments to the Highways Act 1980 that would put highway authorities in England under a duty to consult the public before felling any tree on an urban road.

Provision for the new mandatory planning condition would be contained in a new Schedule 7A to the Town and Country Planning Act 1990. The condition would be deemed to be imposed on every planning permission for development in England, with the exception of planning permissions granted by development order (i.e. permitted development rights), urgent Crown development and such development as may be prescribed by regulations.

The condition would simply prohibit development from commencing until a ‘biodiversity gain plan’ has been submitted to, and approved by, the local planning authority. The requirements for the biodiversity gain plan would be set out in the new Schedule 7A. These are:

  • information about the steps taken or to be taken to minimise the adverse effect of the development on the biodiversity of the onsite habitat and any other habitat;
  • the pre-development biodiversity value of the onsite habitat;
  • the post-development biodiversity value of the onsite habitat;
  • any registered offsite biodiversity gain allocated to the development and the biodiversity value of that gain in relation to the development;
  • any biodiversity credits purchased for the development; and
  • such other matters as the Secretary of State may by regulations specify.

Biodiversity value will be measured using the biodiversity metric published by DEFRA.

Through the combination of measures set out in the plan (i.e. any onsite improvements, offsite improvements or credits purchased) the plan must demonstrate an increase in biodiversity value of at least 10%.

Matthew adds: “While this may seem a laudable goal, the provisions take no account of the baseline condition of sites. Improving by 10% the biodiversity value of a site with already high biodiversity value would be more challenging than improving by 10% the biodiversity value of a site with poor biodiversity.”

The Bill also states that any onsite biodiversity improvements proposed as part of the development may only be taken into account if provision is made for the works to create those improvements to be maintained for at least 30 years. Such provision could be made by planning condition, planning obligation or by way of a ’conservation covenant’ between the landowner and a ‘responsible authority’. Other provisions in the Bill deal with the implementation of conservation covenants.

It also says that any offsite biodiversity improvements will only count towards the biodiversity net gain if the improvements are carried out on a site included on the biodiversity gain sites register, which appears likely to be maintained by Natural England, although the Bill would allow regulations to be made to prescribe who will be responsible for the register and how it should be administered.

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