Mandatory Biodiversity Net Gain, in due course…

DEFRA released their response to the responses on the consultation in relation to the proposals for mandatory 10% biodiversity net gain in July, with it having been confirmed by the (then) Chancellor of the Exchequer in the Spring Statement that the forthcoming Environment Bill would mandate biodiversity net gain for development (housing and commercial, not nationally significant infrastructure projects (NSIPs)) in England. The release of the response was preceded by the (then) Communities Secretary ordering all “house builders” to build highways for hedgehogs and homes for frogs, newts and birds (albeit a few swift bricks may not meet the 10% requirement which is to be calculated using the Natural England Biodiversity Metric 2.0) and at the same  time the publication of updates to the PPG regarding what biodiversity net gain is and how it can “in appropriate circumstances” be achieved. These are positive steps towards improving the biodiversity of the Country, whilst we embark on one of the largest programmes of redevelopment since the decades after the second world war to address the housing crisis and deliver the infrastructure needed to support it.

But we are yet to see the proposed primary legislation to mandate net gain, and as is normally the case the devil will likely be in the detail. The DEFRA response identifies the need for the government to do more work to address viability concerns raised at the consultation to ensure the net gain requirement does not hinder housebuilding, though it remains unclear how this concern is to be addressed. Further, the response identifies exemptions which are to be set out in secondary legislation in relation to sites that do not contain habitat to start with, minor residential developments, development of specific ownership types (such as residential self-build) and targeted exemptions for brownfield sites which “face genuine difficulties in delivering viable development”, though quite how those exemptions will be provided for is not yet known. In addition, how transitional provisions will operate to subject applications for reserved matters in respect of schemes with outline planning permission to the net gain requirements is an issue not yet addressed.

The Environment Bill is due to be introduced in the second session of Parliament (likely to be October 2019 to ensure that the measures in the Bill are introduced before the end of the implementation period in December 2020). The passing into law of the Act will follow, and secondary legislation will subsequently be introduced to confirm the finer details. Of course, the Environment Bill serves a wider purpose than just biodiversity net gain and as such the date for its introduction may be subject to further change. It may be some time before we fully understand biodiversity net gain requirements, and some time after that before it becomes mandatory.

Author: Martyn Jarvis, senior associate, planning, London

For further information please contact:

Martyn Jarvis
Martyn Jarvis
Senior associate, planning and environment, London
+44 20 7466 2680
Catherine Howard
Catherine Howard
Partner and head of environment, London
+44 20 7466 2858