Navigating Biodiversity Net Gain Regulations: A Guide for Developers

As of February 2024, the biodiversity net gain (BNG) regulations introduced in England and Wales represent a pivotal shift in environmental policy, with significant implications for developers. These regulations, rooted in the Environment Act 2021, require that all new developments deliver a measurable net gain in biodiversity. This article provides an overview of the BNG regulations, key considerations for developers, and strategies to address potential challenges.

Understanding Biodiversity Net Gain Regulations

The BNG regulations are a legislative measure aimed at halting and reversing the decline in biodiversity. Key components of the regulations include:

1. Mandatory Net Gain Requirement: Under Schedule 7A of the Town and Country Planning Act 1990 (as inserted by schedule 14 of the Environment Act 2021), all planning permissions granted in England and Wales must demonstrate at least a 10% net gain in biodiversity. This is measured using the Biodiversity Metric 3.0 or any updated metric specified by the government.
   

2. Biodiversity Net Gain Plans: Developers must submit a biodiversity net gain plan as part of their planning application. This plan should outline how the proposed development will achieve the required net gain, detailing on-site and off-site measures.
   

3. Conservation Covenants: These are legally binding agreements between landowners and responsible bodies (such as local authorities or conservation organisations) to ensure long-term maintenance of biodiversity net gain.
   

4. Biodiversity Credits: If achieving biodiversity net gain on-site and off-site is not feasible, developers can purchase biodiversity credits. These credits are there as a very last resort and are designed as a way to fund biodiversity projects elsewhere, ensuring compliance with the net gain requirements.

Key Considerations for Developers

Developers must navigate several critical aspects to comply with the BNG regulations effectively:

1. Early Integration of Biodiversity Considerations: Incorporating biodiversity net gain assessments at the early stages of project planning is crucial. Engaging ecologists and environmental consultants can help identify potential biodiversity impacts and suitable mitigation measures.
   

2. Accurate Measurement and Reporting: The use of the Biodiversity Metric 3.0 is mandatory for calculating net gains. Accurate data collection and reporting are essential to demonstrate compliance. Developers should ensure their teams are proficient in using this metric.
   

3. Legal Compliance and Documentation: Preparing comprehensive biodiversity net gain plans and ensuring they meet statutory requirements is vital. Legal professionals can assist in drafting and reviewing these documents to avoid potential pitfalls. If you have any questions, get in touch with us at Legal Answers Pro today.
   

4. Stakeholder Engagement: Collaborating with local authorities, conservation bodies, and community stakeholders can facilitate smoother project approvals and foster goodwill. Transparent communication about biodiversity net gain can also enhance the project's public perception.
   

Potential Challenges and Solutions

1. Achieving On-site Net Gain: One of the primary challenges is meeting the net gain requirement on-site, especially in urban or densely developed areas. Developers can address this by:
   

• Innovative Design Solutions: Integrating green roofs, living walls, and other innovative landscaping features to enhance on-site biodiversity.

• Ecological Enhancements: Implementing measures such as habitat restoration, native species planting, and creation of wildlife corridors.
  

2. Navigating Conservation Covenants: Ensuring long-term maintenance of biodiversity net gain through conservation covenants can be complex. Developers should:

• Seek Legal Advice: Legal professionals can help draft and negotiate covenants that balance conservation goals with development interests.

• Engage with Responsible Bodies: Building relationships with local authorities and conservation organisations can streamline the process of establishing covenants.

3. Utilising Biodiversity Credits: In cases where on-site as well as off-site net gain is unachievable, purchasing biodiversity credits is a viable alternative, but note, this is designed as a very last resort option and you will have to demonstrate in your plan that all other options have been exhausted. Developers should:

• Understand the Market: Familiarise themselves with the availability and pricing of biodiversity credits.

• Ensure Credible Off-site Projects: Verify that the credits support credible and effective biodiversity projects.
  

Case Law and Precedents

The principles underlying the BNG regulations are reflected in several judicial decisions emphasising environmental considerations in planning:

• R (on the application of Friends of the Earth Limited and others) v. Secretary of State for Transport [2021] EWCA: This case highlighted the necessity for thorough environmental impact assessments in planning decisions, setting a precedent for the rigorous scrutiny expected under BNG regulations.

Conclusion

The biodiversity net gain regulations introduced in England and Wales in February 2024 present both challenges and opportunities for developers. By integrating biodiversity considerations early in the planning process, accurately measuring and reporting net gains, and seeking expert legal and ecological advice, developers can navigate these regulations effectively. Ensuring compliance not only fulfils statutory obligations but also contributes to the broader goal of enhancing and protecting the natural environment.