The publishing of draft legislation on the UK’s biodiversity net gain (BNG) framework has been broadly welcomed, but its planning permission proposals have triggered concerns about “serious risks” among ecologists.
The drafts provide specifics on how the BNG is most likely to work in practice on key areas such as monitoring, a BNG register, irreplaceable habitats, and fines for misleading information.
Parliament is due to consider the draft legislation for approval on Thursday, following a three-month delay to its implementation.
The UK’s BNG mechanism will require most new major development projects to achieve a net improvement of 10% biodiversity from this January, and small sites from April, pending approval.
Market actors are watching the progression of the law as it could set a global standard for national nature requirements, while creating a statutory market for biodiversity credits.
The draft laws include:
- Details of how BNG sits within the planning application process.
- A publicly accessible BNG register of off-site commitments operated by public body Natural England.
- Fines for submitting misleading information to the register.
- Criteria for biodiversity improvement for registered land for at least 30 years.
- A “narrow” list of categories of developers exempt from BNG requirements, including the high-speed railway network.
- A list of habitats “irreplaceable” by BNG, requiring “bespoke compensation”, such as ancient woodland, coastal sand dunes, and some peatland.
The draft law on planning permission sets out the procedure for submission, with local planning authorities to determine the plan within eight weeks.
Natalie Duffus, a BNG-focused PhD student at the University of Oxford, said the drafts stated that net gain would be a post-planning permission matter, with just the biodiversity baseline submitted in the initial application.
“I worry that this will limit the opportunity for public consultation on BNG plans,” she told Carbon Pulse.
“I also have concerns that this will allow developments to be approved that realistically can’t achieve 10% BNG in an ecologically sensible way, as they don’t need to evidence how they will do it from the outset.”
Sophus zu Ermgassen, ecological economist at the same university, was concerned by the planning proposals due to precedent in Australia.
“Given that biodiversity net gain has a fundamental political component, in that there will always be winners and losers from new developments, reducing the opportunities for public scrutiny of developers’ net gain plans I think comes with serious risks,” he told Carbon Pulse.
“We’ve seen something very similar happen in Australia, where addressing biodiversity offsets in the planning process often gets kicked down the road into the post-approval phase, greatly reducing the opportunity for democratic oversight and consultation on the biodiversity offsetting strategy,” zu Ermgassen said.
Duffus said she was unsure whether local planning authorities will have the capacity to ensure that all the moving parts of the BNG requirements work effectively for biodiversity.
A FEW SURPRISES
Duffus said that although the BNG legislation gave welcome detail – for developers, consultants, and planners – she noted that there were a few surprises for ecologists.
“The first was the introduction of the Biodiversity Gain Hierarchy. This departs from the existing Conservation Mitigation Hierarchy, which describes the way that impacts on habitats should be avoided and minimised, before moving onto remediation and offsetting.”
“The new Biodiversity Gain Hierarchy stipulates that this only kicks in for habitats of high distinctiveness and above. I find this concerning, as it may leave the door open for low and medium distinctiveness habitats to be impacted and offset, without the need to justify why impacts were not avoided and minimised.”
Duffus flagged the lack of ancient grasslands on the irreplaceable habitats lists as another surprise, as these can take up to 100 years for some insects to recolonise them, under some estimates, she said.
The list is just an “initial” one, with a public consultation on a broader definition of irreplaceable habitat to launch in 2024, the government said in a blog in October.
MONITORING
Despite her concerns, Duffus broadly welcomed the release of the draft legislation, particularly the way “significant on-site gains will be treated more in line with off-site gains”.
The government has incentivised improving nature on the site of the development, before delivering it in a nearby area off-site, with statutory biodiversity credits further away available as a ‘last resort’.
“We now have a definition for significant on-site habitat gains, which must be secured with a legal agreement, in the same way as off-site gains,” Duffus said. Concerns had previously been raised about whether the requirements would include minimum monitoring standards.
“Planning conditions can be set to include regular monitoring and reporting by the developer,” Duffus said.
Oliver Lewis, CEO of BNG consultancy Joe’s Blooms, also welcomed how the release of the drafts included “important details” about the monitoring and enforcement of gains.
“The guidance makes clear that biodiversity requirements will impact a wide array of sites, meaning virtually the entire sector must be well prepared,” Lewis told Carbon Pulse.
By Thomas Cox – t.cox@carbon-pulse.com
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