The UK government has incorrectly suggested the order of preference for how developers handle nature impacts is mandatory under its biodiversity net gain (BNG) guidance, a lawyer has said.
Local planning authorities have a legal duty to consider how the biodiversity gain hierarchy is being applied, but this does not technically stop them from approving developer plans neglecting it, said Penny Simpson, an environmental lawyer at law firm Freeths.
“Developers don’t have to stick to the order of preferences in the hierarchy to achieve the 10% BNG – there is more flexibility in the system than the government seems to suggest in its guidance,” Simpson told Carbon Pulse.
Under the BNG mechanism, development projects need to achieve a net improvement of 10% biodiversity from this month.
Market actors are watching the implementation law as it could set a global standard for government nature requirements, while creating a market for biodiversity credits that developers have to buy offsite as a ‘last resort’ under the hierarchy.
The biodiversity gain hierarchy sets out six actions in order of priority for developments. These range from avoiding adverse effects to rare habitat, to purchasing biodiversity credits if offsite habitat enhancement cannot be secured.
The government advice on the hierarchy is “somewhat misleading as it seems to suggest that the hierarchy is mandatory”, Simpson said on LinkedIn.
Although the legislation itself is mandatory for developers, local planning authorities could approve plans that sidestep the hierarchy, she said.
Local planning authorities must take into account how the biodiversity gain hierarchy is applied, and where any part of that hierarchy is not to be applied with reason or absence of reason, under the government guidance.
The government said on its website in November that developers must buy biodiversity credits as a last resort if they cannot achieve onsite or offsite biodiversity net gain.
The hierarchy has previously been criticised for only kicking in for habitats of high distinctiveness and above, leaving the door open for damage to medium distinctiveness habitats.
The government also said the allocation of any offsite biodiversity gains must be recorded before the local planning authority can approve the biodiversity gain plan.
However, there is “nothing” in the legislation to this effect, Simpson said.
“Indeed there is no obligation on any person in the legislation to record allocations of registered offsite gain to developers – recording allocations is merely optional and furthermore can only happen once the developer’s planning permission has already been granted,” Simpson said.
“We are concerned that the approach in the guidance, that recording such allocations is a precondition to the local planning authority discharging the biodiversity gain plan, is unhelpful and will create unnecessary delays for developers awaiting approvals.”
Carbon Pulse has asked the government for a response.
By Thomas Cox – t.cox@carbon-pulse.com
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