The UK government has updated the order of preference for how developers handle biodiversity impacts so it applies to all habitat types, rather than only the most distinctive, an expert has said.

Lawmakers passed amended legislation on Monday to clarify how developers should comply with the biodiversity gain hierarchy, removing an apparent conflict with existing law the National Planning Policy Framework (NPPF), said Alexa Culver, general counsel at conservation company Environment Bank.

The earlier draft regulations initially seemed to “make a mistake”, leading to the possible interpretation that developers could use off-site initiatives like biodiversity units more easily for habitats of lower distinctiveness, Culver told Carbon Pulse.

“We support developers being able to access high quality off-site BNG solutions more easily, but any policy clashes between the biodiversity net gain regulations and the NPPF are unhelpful for the sector,” Culver said.

“Under the amended regulations, you still need to avoid impacts to high distinctiveness habitats as much as you can before then mitigating and compensating for those losses,” she said.

Following the correction, the biodiversity gain hierarchy also catches lower distinctiveness habitat types.

This hierarchy sets out six actions in order of priority for developments. The law change means developers need to “mitigate on-site as best they can, then look at off-site biodiversity units, and then look to statutory credits”, Culver said.

A TALE OF TWO HIERARCHIES

The biodiversity gain hierarchy had faced criticism for only kicking in for habitats of high distinctiveness and above, leaving the door open for damage to medium distinctiveness habitats.

Under the new ‘general’ biodiversity net gain (BNG) ‘condition’, development projects need to achieve a net improvement of at least 10% biodiversity from this month.

The ‘biodiversity gain hierarchy’ builds on the more general existing ‘mitigation hierarchy’ under the NPPF, which developers and local planning authorities are already accustomed to.

The new biodiversity gain hierarchy gives greater detail on how developers should prioritise action when it comes specifically to biodiversity loss, Culver said.

The ‘mitigation hierarchy’  is set out in the NPPF, which was first published in 2012, while the latest changes from Monday to the ‘biodiversity gain hierarchy’ amend existing UK planning law.

Jo Treweek, managing director at Treweek Environmental Consultants, said the biodiversity hierarchy name would cause “all sorts of confusion” with the mitigation hierarchy, in a LinkedIn post.

The law now says the biodiversity gain hierarchy applies in relation to “any on-site habitat which is adversely affected by development”.

The draft statutory instruments relating to BNG were published last month, and were subsequently amended and passed into law this month.

The UK government told Carbon Pulse it had not intended for the biodiversity gain hierarchy to only apply to high distinctiveness habitats. This week’s change should help to clarify the legislation, it said.

Recognising that following the steps of the biodiversity gain hierarchy may not be possible in every single development, the framework is designed to give decisionmakers flexibility about its application when determining their BNG Plan, following the NPPF, it said.

BIODIVERSITY CREDITS

Under the biodiversity hierarchy, statutory credits represent a ‘last resort’ if developers are unable to source the gains by other means. Prices for these credits, announced last year, range from £42,000 per unit for certain grassland and wetland areas, up to £650,000 for lakes.

Culver said she did not think this week’s change to the legislation would make much of a difference to the usage of biodiversity credits as they had already been “prohibitively priced”.

This week, an industry expert claimed that biodiversity credits could be used a lot more than the government had intended as a simpler option than on- or off-site biodiversity units.

Above biodiversity credits in the hierarchy are off-site biodiversity units, of which the Environment Bank has said it is England’s largest provider.

Culver said the first draft of the biodiversity legislation last month would have made it “marginally easier” to access off-site biodiversity units than this week’s update, but the amendment “makes no material difference”.

By Thomas Cox – t.cox@carbon-pulse.com

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