Women in Planning 

January, 2022 - Shoosmiths LLP

The implications of Biodiversity Net Gain & Nutrient neutrality on planning applications.


In this presentation, Rachael Coulsting (Senior Associate in Planning, Birmingham office) and Grace Mitchell (Senior Associate in Planning, Solent office), discussed the implications of biodiversity net gain (under the NPPF and the new Environment Act 2021) and nutrient neutrality (under the Habitats Regulations 2017) on planning applications and decisions and the issues facing developers and local authorities in order to secure compliance, as well as considering some practical solutions.


Jill Briggs (Principal Associate in Real Estate, Birmingham office) highlighted the impacts this is likely to have on residential development from a land perspective.


Questions & answers

1. Q: If it's a small development, opportunities for provision onsite are going to be constrained. Will improvements in gardens, such as hedging, tree planting etc count towards BNG, or does the habitat improvement need to be in a communal area of the site?


A: What exactly will be appropriate mitigation for BNG purposes will depend on the specific circumstances of each development and the details presented by the developer’s ecologist. A scheme would need to be submitted in line with the wording of the new planning condition and this would set out details of the proposed mitigation measures, the locations onsite of those measures etc. The problem with gardens is that it is difficult to secure long term provision / maintenance of hedges etc, hence why communal areas under the control of a management company / the local authority are usually the preferred means of securing long term mitigation. Although gardens can be included within BNG calculations, their low biodiversity unit value accounts for the assumption that a large proportion will potentially be lost, reflecting the fact that these are largely private spaces and so they cannot be legally secured in the same way. Some very small developments which would have a minimal impact on habitats would be exempt under the new regulations, with more details as to what exactly this will entail to follow.


2. Q: What’s the rules for BNG and nitrates for prior approvals?


A: BNG will not apply to permitted development and hence prior approvals; only new planning applications for development after the relevant sections of the Environment Act 2021 come into force will be caught by the new BNG requirement.


In the case of nitrates, Regulation 75 of the Conservation of Habitats and Species Regulations 2017 imposes a condition on all forms of permitted development likely to have a significant effect on a European site that permitted development may not commence until the LA has given approval. Under Regulation 77, the LA must only give approval if it is satisfied that the PD will not adversely affect the integrity of the protected habitat.


3. Q: A strategic question on land use... What are the implications for the need for food production, with potential conflict BNG off site and nitrogen mitigation banks (rewilding)?


A: The DEFRA consultation (which remains ongoing) acknowledges that there is some confusion as to how BNG will impact on farmers and responses are invited in this regard; farmers/landowners are being encouraged to comment on the proposals and any issues arising.  Clearly there is a potential conflict in relation to the ongoing need for food production versus the benefits involved in allocating part of farming land for BNG purposes.  There is also the fact (as raised by bodies such as the Food Research Collaboration group), that BNG fails to reward farmers who have already undertaken sustainable farming on their land, as opposed to intensive farming, as the baseline will naturally be assessed at a higher level on sustainable farms, where there may not be much scope for further improvement on their land. It will be interesting to see how these issues are ultimately considered in the consultation and resolved in the long term – will there be more of a steer towards onsite mitigation in 20-30 years’ time?


4. Q: An ecologist recently advised that an ""appropriate assessment"" (HRA) under the Habitat Regulations can take place alongside the planning determination process, and that in some cases planning can be granted prior to the appropriate assessment conclusions. Could you confirm if this is the case or not?


A: HRAs are required in relation to any proposed development which is likely to impact on European designated sites, such as Special Areas of Conservation (SAC), Special Protection Areas (SPA) and Ramsar sites. In such cases the local planning authority is legally required to carry out an HRA. They may not necessarily be required for all developments, unlike BNG which does apply to all developments. The outcome of the HRA will be a consideration as to whether planning permission should be granted, and planning permission will not be granted unless an HRA has been carried out and it has been concluded that no adverse impact will result.


5. Q: Are there any examples for above 10% BNG being progressed in Local Plans that you are aware of? If so was there any specific reasoning/evidence for doing so?


A: Kent and Swale are two examples of local authorities who are considering introducing a 20% requirement. Swale Borough Council has recently consulted on their pre-submission local plan review, which included a policy for 20% net gain.  The reasoning behind this is due to Swale having a large proportion of its environment (60%) being recognised internationally for the diversity of its wildlife and habitats. The Borough contains the Kent Downs Area of Outstanding Natural Beauty and also has a number of local landscape designations (known as Areas of High Landscape Value). Therefore, the Borough is placing even greater emphasis on protecting and enhancing the natural environment and is proposing 20%. A link to the pre-submission review document, which provides full detail of the reasoning for requiring 20% (see pages 46-54) is contained here.


Kent Wildlife Trust Consultancy was commissioned by Swale Borough Council to undertake a mapping exercise covering the whole Borough in order to inform the Council’s approach to meeting BNG requirements. Environmentalist groups and locals were supportive of the 20% target, although understandably developers felt that the figure was unjustified. The consultation has now closed and the outcome is awaited.


6. Q: Conservation covenants - is biodiveristy net gain the only way these will be used... or could they be used for other things too... agreements with farmers to manage land to reduce runoff and flooding... Are they a broader tool or BNG specific..?


A: Part 7 of the Environment Act relating to conservation covenants provides that these may be entered into for any provision which has a ‘conservation purpose’ if its purpose is:


  • to conserve the natural environment of land or the natural resources of land,
  • to conserve land as a place of archaeological, architectural, artistic, cultural or historic interest, or
  • to conserve the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest.

It is therefore open to interpretation whether these agreements could be used to reduce runoff and flooding etc, and will depend on the circumstances of each case as to whether a conservation purpose will be met.


7. Q: Could a developer argue it is the responsibility of a water company treating water prior to discharge if it is on the developer's land (if the proposed residential development used those existing sewers but it is treated elsewhere)


A: There is currently no argument which the developer can rely on to avoid its nitrate mitigation requirements for a new residential development, should the appropriate assessment show that the nitrate output of the new development will not be nitrate neutral compared to the development site’s previous use.


8. Q: For phased developments - is it the requirement for 10% overall or for each phase?


A: The 10% requirement will need to apply across the whole of the development, and the local authority will need to be satisfied that this will be secured e.g. if the later phases of the development are not developed, authorities may consider requiring the BNG to be front-loaded in to the earlier phases to ensure the 10% target is met.


9. Q: How do we avoid double or even triple counting as the same measure is used for Biodiveristy net gain, nitrate mitigation, carbon offsetting, nitrate mitigation.... It could be a good thing to combine and get things at scale... but is double counting a risk?


A: It is true that the same scheme could potentially provide double mitigation, for instance secure 10% BNG whilst at the same time secure nitrate mitigation (effectively killing two birds with one stone). The more pressing issue is whether the local authority is satisfied that one scheme may be sufficient for dealing with all of these aspects (BNG, nitrates etc). The legal requirements relating to BNG and nitrates are separate and need to be dealt with in equal measure for every development. It will depend on the circumstances of each proposed development as to what exactly will be required.


10. Q: How will authorities ensure that there is compliance with the BNG condition and that any onsite or offsite net gain will be delivered and in place for 30 years?


A: Monitoring of BNG is to be the responsibility of the developer (secured via the new planning condition) and should be set out in the developer’s BNG scheme. LPAs will have duties to report on BNG delivery.  Further information on monitoring requirements is expected to be set out in the forthcoming Defra consultation and secondary legislation.


11. Q: Is there currently a way of discharging a planning condition and confirming a 'biodiversity enhancement' without providing a metric to set this out? The condition doesn't reference 'net gain' but clearly this is the outcome they are probably expecting


A: It is difficult to comment without seeing the wording of the specific condition. It will be for the local planning authority to determine what would count as full compliance with the terms of the condition, and whether this would require a metric calculation or not. The metric is a useful tool in calculating BNG on a site and we would imagine most local authorities would require it to be used. Once the 10% requirement comes into effect, the standard planning condition will apply and 10% (at least) net gain will be compulsory, and the metric will need to be used.


12. Q: Jill mentioned the Brighton and Hove planning condition for Bee bricks. I note that there has been a pushback on this due to the risk of spreading diseases if the bee bricks have not been maintained properly and could cause further damage to bee populations. Do you think this is an example of teething issues? I worry this information could be used to undermine the requirement (which perhaps is the right thing to do if it will cause more harm than good?)


A: The NPPF provides that local plans should “ promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity and development whose primary objective is to conserve or enhance biodiversity should be supported; while opportunities to incorporate biodiversity improvements in and around developments should be encouraged, especially where this can secure measurable net gains for biodiversity.” Until we get some specific guidance as to what exactly is meant in practice by promoting conservation and enhancing biodiversity, local planning authorities can introduce specific BNG measures through their local plans. Brighton and Hove have introduced a policy that all new buildings over 5m height should include bee bricks. Unless such a policy is challenged i.e. through an appeal or JR process whereby evidence is heard from an ecologist, the LPA is entitled to impose such a requirement. Further guidance is needed as to what may be considered appropriate mitigation and whether bee boxes in particular would be considered acceptable.


13. Q: Would the measures for biodiversity net gain themselves require planning permission? If there is a planner fee for these then this significantly reduces the amount of funding going into conservation and also adding to admin burden.


A: According to the Town and Country Planning Act 1990 S. 55, planning permission is required for ‘development’ which is defined by S.57 as the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. ‘Building operations’ is defined as (a) demolition of buildings; (b)rebuilding; (c)structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. There are also some exceptions as to what counts as ‘development’ set out in the TCPA, including “the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used”. It would obviously depend on exactly what was being proposed as part of the BNG scheme, but unless there was some kind of permanent structure being created on the land as part of the proposed scheme, or some other engineering works which would count as ‘development’ under the TCPA, generally speaking most BNG schemes would be unlikely to require planning permission.


 


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