There are 2 parts to the biodiversity reporting requirements under the Environment Act 2021:
- The Natural Environment and Rural Communities (NERC) Act 2006, updated by the Environment Act 2021, places a legal responsibility on public authorities in England to a duty to deliver biodiversity reports under section 40A of the NERC Act.
The Environment Act 2021 also introduced a new duty for local planning authorities that their biodiversity report must contain:
- A summary of the action taken by the authority in carrying out its functions under Schedule 7A to the Town and Country Planning Act 1990 (biodiversity gain as condition of planning permission) over the period covered by the report.
- Information about any biodiversity gains resulting or expected to result from biodiversity gain plans approved by the authority during that period.
- A summary of the authority’s plans for carrying out those functions over the five-year period following the period covered by the report.
Defra intend to update this guidance and introduce a template for local councils to use to capture and report data.
This is difficult to say. Until the Planning & Infrastructure Bill has completed its path through parliament and receives Royal Ascent, the full requirements of EDPs will not be known. At this point, the requirements for producing an EDP will be clearer and then a better idea of their production timetables will be available. What we do know at this stage is that the production of an EDP will involve:
- Framing the EDP – what environmental impacts they cover, where and the scale of development they can support.
- Designing the measures – EDPs will set out the suite of conservation measures that will be deployed to more than address the impact of development across a given area.
- Setting the levy rate – A simple charge sufficient to cover the costs of the conservation measures, will be payable by developers.
- Consultation and approval – EDPs will be consulted on before being submitted to the Secretary of State for approval.
- Delivering on the EDP – Natural England will use the necessary powers to use funds collected to implement the conservation measures.
Part three of the Planning and infrastructure Bill (currently making its way through parliament) sets out a more strategic approach for mitigating environmental impacts and harm through development.
It proposes Environmental Delivery Plans (EDPs) for issues in particular areas.
The approach is moving the evidence work and site-specific assessments away from developers to the Government/State, with Natural England doing this assessment and evidence production through the EDP production process up front.
The idea is not to do away with assessments, just to carry it out more strategically. The thinking is that by doing assessments more strategically, then better outcomes can be delivered for nature and the environment overall than can be achieved by a site-specific approach.
Planning applications must still go through the normal decision-making process where all planning matters will be picked up. For example, you might have a site that is in a nutrient neutrality catchment and there is an environmental delivery plan for nutrient neutrality. The developer does not need to do anything for that; they pay into a fund. There may also be ancient woodland on their site and that would be a separate local issue that will be considered through the planning decision making process as normal.
This will be different for different places and having an up to date and adopted local plan must be the strongest starting point. Whatever policies you do have will have the most weight if they are part of an up to date and adopted local plan. Without an up-to-date local plan, councils will not have control and will be vulnerable to speculative development that may not achieve the best environmental outcomes.
Your local plan will be produced under planning law and will carry significant weight in the planning and decision-making process. The trick is to create planning policies that are focused on delivering the right sorts of development, are well evidenced and work well alongside (do not repeat or contradict) other laws designed to protect the environment.
Allocations of development sites in local plans will also be a key thing for councils to consider. How do these sites help to achieve the environmental and biodiversity outcomes the council is seeking to achieve? Once this is clear there are strong messages you can give to communities about why these sites have been selected. This is where Local Nature Recovery strategies (see above) will be key in selecting sites.
One of the aims of a PAS Network for councillors is to share good practice and ideas about drafting strong and effective local plan policy.
Developers must follow the BNG hierarchy which prioritises the delivery of biodiversity enhancements onsite before looking to purchase off-site biodiversity units.
Developers can achieve net gain by following the BNG hierarchy in the following order:
- On-site BNG: Developers should first attempt to amend their scheme design to incorporate retained, enhanced, or newly created habitat within the submitted RLB to achieve BNG on-site.
- On-site and off-site combination: If the required 10% uplift cannot be achieved entirely on-site, with suitable justification. Developers can meet the BNG requirement through a combination of on-site and off-site measures. Off-site BNG can be delivered on the applicant's land (if available) outside the RLB or by purchasing off-site biodiversity units from a supplier (habitat bank).
- Statutory biodiversity credits: If achieving BNG on-site or off-site is not feasible, with reasonable justification showing that the hierarchy has been followed. Applicants can purchase statutory biodiversity credits from the government, but must evidence this approach if more than 0.25 Biodiversity Units are required.
Applicants could also combine all three options for delivering BNG on-site, off-site and purchasing statutory credits, but must provide evidence that they have followed the hierarchy in this precise order.
Where offsite units are not available locally, then developers will have no choice but to purchase units from habitat banks (most of which are set up by private organisations now) potentially miles away.
Local councils must decide on their strategy for encouraging the availability of locally available offsite units. This will involve decisions about how to encourage local landowners to use their land to set up habitat banks, and whether the local council itself wants to bring its own land into the offsite market.
Although, this may not solve all issues (e.g. on sites in some built-up areas, onsite delivery is just not possible), but it will help to ensure that where offsite mitigation is provided (and the resultant benefits), it is provided as close to the development site as possible.
PAS produced some resources for decision making including how planning committees should be involved – these resources can be found here: Biodiversity Net Gain in Development Management Toolkit | Local Government Association
It depends on the landowner’s objectives, where the land is situated (it may be difficult to get planning permission for housing), and their long-term strategy for the land.
The planning inspectorate (PINS) will carry out local plan examinations and appeals on planning decisions based on a variety of national and local planning and environmental polices (as they affect planning decisions and plan making). For local plan examinations and appeals, the ‘weight’ given to policy is decided on the balance of evidence and available.
The delivery of at least 10% BNG on individual development sites is a requirement in Law (a statutory requirement) unless the development is exempt.
There are rules that must be followed and those completing the metric must have certain levels of competency.
PAS has produced a Local Authority Nature Recovery Toolkit | Local Government Association that goes some way to addressing some of these issues.
Each place is different and will have different requirements. This is where partnerships are fantastic e.g., if you have a Local Nature Partnership in your area, they should have information and be gathering evidence for the Local Nature Recovery Strategies (LNRS).
Now most councils have focused their resources on processing planning applications and getting legal agreements in place, and are still thinking through the monitoring, evaluation, and enforcement side of things.
Planning teams are working with their enforcement teams to discuss the requirements for enforcement set out in the BNG Planning Policy Guidance (PPG) and what it might mean for their approach to enforcement, to understand enforceability when conditions are being drafted and used and to make sure to include BNG objectives in enforcement plans and policies. There is also lots of work integrating monitoring software with back-office systems to introduce processes, rigor and prioritisation of monitoring and enforcement with existing systems.
There is a statutory Biodiversity metric tool which is a spreadsheet that all developers and all councils use to calculate the pre and post development biodiversity value of a site.
