LGA response to Defra Consultation on biodiversity net gain regulations and implementation

We support the principle of biodiversity net gain and the broader ambitions of the 25 Year Environment Plan to be the first generation to leave our natural environment in a better state than we found it.


About the Local Government Association

  1. The LGA is the national voice of local government. We are a politically-led, cross party membership organisation, representing councils from England and Wales.  
     
  2. Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems. 

Summary

  1. We support the principle of biodiversity net gain and the broader ambitions of the 25 Year Environment Plan to be the first generation to leave our natural environment in a better state than we found it. It provides a key opportunity to maximise natural green capital and deliver multiple benefits for councils and the local communities that they serve.
     
  2. We welcome the opportunity to comment on the proposals for biodiversity net gain implementation and regulations.  It is good that Defra officials have been proactive in working with the Planning Advisory Service (PAS) to reach out to councils by holding Q&A sessions on the consultation document. We hope that this two-way exchange of dialogue will continue as there are many questions still to be addressed, particularly on funding for local planning authorities and the shortage of people with the necessary skills.
     
  3. The announcement of £4 million to support councils prepare for the go live date is welcome and this money is now with councils. We need clarity on new burdens funding and we stand ready to work with Defra to ensure that the resource implications are fully understood. Following this, an effective package of capacity building support must be put place.
     
  4. Given the short period of time to prepare for implementation, to support readiness, councils must have access to standard documents, advice and support that will allow them to develop policies that are clear to developers and avoid limited resources being diverted into legal challenges and appeals. 
     
  5. Biodiversity net gain does not exist in a vacuum. Annex A of the consultation paper lists nine other areas of new policy that link to biodiversity net gain, including local nature recovery strategies and planning reforms. Government must act in a joined-up way to help councils through the complexity of implementation and set out a clear timetable of go live dates. Councils are ready to provide strong community leadership on nature recovery, but in order to do that they need to see the full picture and be equal partners in the development of funding mechanisms such as the Environmental Land Management Scheme.

Consultation questions

In responding to this consultation, we have focused on the questions that relate to local government activity or areas where the LGA has views on behalf of councils in their roles as leaders of place

Part one

Defining the scope of the biodiversity net gain requirement for Town and Country Planning Act 1990 development Proposals

Question 1: Do you agree with our proposal to exempt development which falls below a de minimis threshold from the biodiversity net gain requirement?

  1. for area-based habitat: [Yes (which of the following thresholds do you think is most appropriate: 2m2 , 5m2 , 10m2 , 20m2 , 50m2 , other threshold – please specify) / No (please explain why not) / Do not know]

    Yes - 5m2
    We recognise the importance of ensuring that the application of the biodiversity net gain requirement is proportionate to the size of the development and the resulting impact on habitats. However, we are also concerned that the cumulative impact of introducing an exemption for developments impacting habitats below a ‘de minimis’ threshold, risks undermining the ambition of the regulations to address the loss of habitation.
     

  2. for linear habitat (hedgerows, lines of trees, and watercourses): [Yes (which of the following thresholds you think is most appropriate: 2m, 5m, 10m, 20m, 50m, other threshold – please specify) / No (please explain why not) / Do not know]

    Yes - 5m.
    We recognise the importance of ensuring that the application of the biodiversity net gain requirement is proportionate to the size of the development and the resulting impact on habitats. However, we are also concerned that the cumulative impact of introducing an exemption for developments impacting habitats below a ‘de minimis’ threshold, risks undermining the ambition of the regulations to address the loss of habitation.

Question 2: Do you agree with our proposal to exempt householder applications from the biodiversity net gain requirement?

Yes.

Question 3: Do you agree with our proposal to exempt change of use applications from the biodiversity net gain requirement?

Other.  

A change of use application, in many cases would not lead to a loss of biodiversity. However, there are cases, such as a change of use to a sport playing field, which will pose a risk to biodiversity.

Local Planning Authorities must be given the flexibility to grant, or to not grant an exemption in these circumstances depending on the nature of the change of use application. We would also welcome engagement within the sector to support further identification of change of use applications that would pose a threat to biodiversity.

It is unclear what the rationale is for seeking to exempt change of use applications and we would welcome clarification on this.

Question 4: Do you think developments which are undertaken exclusively for mandatory biodiversity gains should be exempt from the mandatory net gain requirement? [Yes, only for biodiversity net gain (please explain why) / Yes, also for some other environmental mitigation purposes (please explain why) / No (please explain why not) / Other (please tell us more) / Do not know]

Yes, for biodiversity net gain and also for some other environmental mitigation purposes.

Sometimes pond creation for mitigating the loss of Great Crested Newt ponds need planning permission but should be exempt because otherwise it makes this difficult.

Question 5: Do you think self-builds and custom housebuilding developments should be exempt from the mandatory net gain requirement? [Yes (please explain why) / No (please explain why not) / Other (please tell us more) / Do not know

No.

There is potential for loss of biodiversity as a result of this type of development. There appears to be no rationale for why self-build and custom housebuilding should be exempt. We would welcome clarification on this. If an exemption is targeted at a particular type of self-build application, for example pertaining to the size of the plot or the number of developers involved, then there is a risk that some developers will attempt to undermine the system to avoid their biodiversity net gain obligation.

As the consultation rightly points out, policy requirements including mandatory net gain requirements should be accurately accounted for in the price paid for land, rather than adding to build costs.

Question 6: Do you agree with our proposal not to exempt brownfield sites, based on the rationale set out above? [Yes / No (please explain why not) / Other (please tell us more) / Do not know]

Yes.

Question 7: Do you agree with our proposal not to exempt temporary applications from the biodiversity net gain requirement? [Yes / No (please explain why not) / Other (please tell us more) / Do not know]

Yes.

Question 8: Do you agree with our proposal not to exempt developments which would be permitted development but are not on account of their location in conservation areas, such as in areas of outstanding natural beauty or national parks? [Yes / No (please explain why not) / Other (please tell us more) / Do not know]

Yes.

Question 9: Are there any further development types which have not been considered above or in the previous net gain consultation, but which should be exempt from the biodiversity net gain requirement or be subject to a modified requirement? [Yes, exempt (please explain which development types and why they should be exempt) / Yes, a modified requirement (please explain which development types and why they should face a modified requirement) / No / Other (please tell us more) / Do not know]

No.

Question 10: Do you agree with our proposal not to exempt development within statutory designated sites for nature conservation from the biodiversity gain requirement? [Yes / No (please explain why not) / Other (please tell us more) / Do not know]

Yes.

Question 11: Do you agree with the stated proposals for development (or component parts of a development) on irreplaceable habitats, specifically:

  1. The exclusion of such development from the quantitative mandatory biodiversity gain objective? [Yes / No (please explain why not) / Do not know]

    Yes.
    But with the caveat that there is a requirement to submit a version of a biodiversity gain plan for development (or component parts of a development) on irreplaceable habitats – as proposed in question 11 b), so that bespoke compensation arrangements can be made.
     

  2. The inclusion of a requirement to submit a version of a biodiversity gain plan for development (or component parts of a development) on irreplaceable habitats to increase proposal transparency? [Yes / No (please explain why not) / Do not know]

    Yes.
     

  3. Where there are no negative impacts to irreplaceable habitat, to allow use of the biodiversity metric to calculate the value of enhancements of irreplaceable habitat? [Yes / No (please explain why not) / Do not know]

    Yes.
     

  4. To use the powers in biodiversity net gain legislation to set out a definition of irreplaceable habitat, which would be supported by guidance on interpretation? [Yes / No (please explain why not) / Do not know]

    Yes.
    Local Planning Authorities must be involved in co-producing this.
     

  5. The provision of guidance on what constitutes irreplaceable habitat to support the formation of bespoke compensation agreements? [Yes / No (please explain why not) / Do not know]

    Yes.
    Local Planning Authorities must be involved in co-producing this.

Part two

Applying the biodiversity gain objective to different types of development 

Question 12: Do you agree with our proposed approach that applications for outline planning permission or permissions which have the effect of permitting development in phases should be subject to a condition which requires approval of a biodiversity gain plan prior to commencement of each phase? [Yes / No (please explain why not) / Do not know]

Yes.

Question 13: Do you agree with the proposals for how phased development, variation applications and minerals permissions would be treated? [Yes / No (please suggest alternative approaches) / Do not know]

Yes.

However, we would welcome more detail on how this work in practice and the rationale for excluding Reviews of Old Minerals Permissions (ROMPs).

Small Sites

Question 14: Do you agree that a small sites metric might help to reduce any time and cost burdens introduced by the biodiversity gain condition? [Yes / No (please explain why not) / Other (please tell us more) / Do not know] 38 of 109

Yes.

We would welcome improvements to the metric that would make the process for measuring biodiversity net gain on small sites simpler and more streamlined. This means less time and costs spent on administering the metric.

Question 15: Do you think a slightly extended transition period for small sites beyond the general 2- year period would be appropriate and helpful? [Yes, a 12-month extension (please explain why) / Yes, a 6-month extension (please explain why) / No (please explain why not) / Other (please tell us more) / Do not know]

No.

The 2-year extension is sufficient.

Question 16: Are there any additional process simplifications (beyond a small sites metric and a slightly extended transition period) that you feel would be helpful in reducing the burden for developers of small sites? [Yes (please outline your suggestion end explain how it would help) / No / Do not know]

Yes.

Local Planning Authority resourcing is already a huge issue, impacting on the ability to deliver the tasks expected of the planning system. Local Planning Authorities have worked hard to ensure the planning system has been able to continue functioning as normally as possible during the pandemic, although in some places this may have meant having to withdraw non-statutory services, for example pre-application discussions. An assessment must be undertaken of the resourcing requirements on the sector as a result of delivering, monitoring and reporting biodiversity net gain and Local Planning Authorities must be sufficiently funded via new burdens. This review must include the identification of the relevant skills and expertise that is required to deliver biodiversity net gain. Further, Local Planning Authorities must be supported to access the right skillsets including ecological expertise. A skills shortage in ecologists is a barrier to delivering biodiversity. According to the Association of Directors of Environment, Economy, Planning and Transport (ADEPT) response to the Local Nature Recovery Strategies consultation around half of local authorities no longer have in-house ecological expertise; and where it does exist, it is stretched and often shared between a number of authorities. Defra should deliver a capacity building strategy to support the readiness of Local Planning Authorities. As an example, Defra worked with the LGA and others to develop a capacity building programme to support the introduction of the Flood and Water Management Act (2010).

A national guidance document should be published to clarify the new statutory responsibilities placed on Local Planning Authorities and the expectations of Defra on how biodiversity net gain should be implemented to ensure that there is a consistent format for Local Planning Authorities to follow. The guidance should be published at least six months prior to the implementation date to support the readiness of Local Planning Authorities. As part of the guidance (and the National Planning Policy Framework) an updated and clear definition should be provided on what constitutes an ‘irreplaceable habitat’. The guidance should also provide advice on how to manage developers that attempt to undermine the system and avoid delivering their biodiversity net gain contributions. Finally, the guidance should clarify the process that Local Planning Authorities should follow in circumstances when (as a last resort) biodiversity net gain cannot be delivered on-site.

Nationally Significant Infrastructure Projects (NSIPs)

Questions 17 to 25 on NSIPs

No. There should not be any exemptions made for NSIPs. It is right that biodiversity net gain should apply to Nationally Significant infrastructure Projects. We have no specific comments on the implementation for NSIPs. There is a much longer implementation period for net gain on NSIPs and this creates two parallel processes for the implementation of net gain. This needs to be taken into account in the consideration of capacity for all stakeholders.

Part three

How the mandatory biodiversity net gain requirement will work for Town and Country Planning Act 1990 development

Biodiversity gain plan

Question 28: Do you agree with the proposed content of the biodiversity gain information and biodiversity gain plan?

Question 29: We will continue to work with external stakeholders and industry on the form and content of the template. Do you agree with the proposed information to be included in a biodiversity gain plan as shown in the draft template?

Yes, in principle we agree with the proposed content of the biodiversity gain information and biodiversity gain plan. It is important that developers understand what is expected of them, and that all the necessary information is proved to the local planning authority at the start of the process.

We welcome further information on the support that will be available to local planning authorities to help them review the information and plans.

Off-site biodiversity gains

Question 30: Do you agree that further guidance is needed to support decision-making about what constitutes appropriate off-site biodiversity gains for a given development?

It is helpful that the consultation confirms Defra’s commitment to delivering improvements onsite where possible. We support further guidance, and this must reinforce the message that net gain must be delivered onsite.

The design of the biodiversity net gain must ensure that net gain is delivered onsite, or as close by as possible. Off-site delivery must not become an easier option for discharging biodiversity net gain obligations.

Question 31: How should the UK Government encourage or enable developers and landowners to secure biodiversity gain sites for longer than the minimum 30-year period?

This is difficult to answer when little information has been given about what will happen at the end of the 30-year period. What will happen to the habitat created through net gain at the end of the period of statutory protection, whether that is 30 years or more? We need more information on the transition from net gain protection into other routes for habitat protection.

The market for biodiversity units

Question 32: Do you agree with our proposals for who can supply biodiversity units and the circumstances in which they may do so?

We agree that any landowner or manager should be able to sell biodiversity units, subject to the conditions set out in the consultation document.

We question whether the market for biodiversity units will be operational in time for the implementation of mandatory net gain in November 2023. There is a short window for developing the supporting regulations and systems, such as the biodiversity gain site register.

Question 33: Do you agree that developers which are able to exceed the biodiversity gain objective for a given development should be allowed to use or sell the excess biodiversity units as off-site gains for another development, provided there is genuine additionality?

Yes, in principle. There must be a clear definition of “genuine additionality”. The consultation document does not explain how genuine additionality would be assessed or who would be responsible and further information on this must be developed by Defra.

Question 34: Do you agree with the proposed scope of the UK Government’s role in facilitating the market, as set out above?

Yes, the proposed scope is reasonable. We are seeking reassurance that Government has the capacity to deliver in time for implementation in November 2023. The scope of the Government’s should be kept under review particularly if the implementation of net gain does not work as expected. A more interventionist approach may still need to be considered.

Habitat banking

Question 35: Are the proposals outlined here sufficient to enable and encourage habitat banking?

Question 36: Do you agree with our proposal that to be eligible to supply biodiversity units for mandatory biodiversity net gain, habitat must be created or enhanced on or after a specified date, proposed to be 30 January 2020?

Question 37: Should there be a time limit on how long biodiversity units can be banked before they are allocated to a development? What would you consider to be an appropriate time limit?

Answer to questions 35 - 37

The consultation document sketches an outline process to encourage habitat banking. As the document says, access to finance will be critical. Landowners will need to see more detail from Government on finance options in order to consider habitat banking as a viable proposition.

Councils will need support and guidance to support the implementation of a specified date. This could include access to nationally available LIDAR data for areas, Google map imagery dated 30 January 2020 or other relevant available information

Proposals set out in the consultation paper are a start, but Defra needs to bring forward more concrete proposals to encourage landowners and managers to consider habitat banking.

The biodiversity gain site register

Question 38: Do you agree that the eligibility criteria for adding sites to the biodiversity gain site register are sufficient?

Yes, in principle. This area of implementation relies on conservation covenants as a tool for delivering net gain. It is difficult to have full confidence in this area of implementation without having more information on conservation covenants.

The consultation paper does not say which body will be responsible for setting up and maintaining the biodiversity gain site register. When will this key decision be made?

Although councils have no obligation to put forward land for improvement through the biodiversity net gain scheme, many will wish to do so. This is another part of net gain that will require detailed preparation by councils and additional resources.

Could Defra consider a light touch registration process for councils? This is one of the suggestions for NSIPs but could usefully be extended to councils.

Question 39: Do you agree that the register operator should determine an application within a maximum of 28 days unless otherwise agreed between both parties?

Yes, although this will depend on good quality information being provided to the operator of the register. This may need to be reviewed once a decision has been made on who will operate the register, see our answer to Question 38.

Question 40: Do you agree that this list of information requirements will be sufficient to demonstrate that a biodiversity gain site is legitimate and meets the eligibility criteria?

Yes, in principle but this needs to be tested with councils and other landowners. Defra may wish to work with the LGA and the Planning Advisory Service on pilots or workshops with councils.

Question 41: Do you agree that the UK Government should require a habitat management plan, or outline plan, for habitat enhancement to be included on the register?

Yes.

Question 42: Do you agree that the UK Government should allow the register operator to:

  1.  set a fee for registration in line with the principle of cost recovery?
    We support the principle that cost of providing the register should be borne by those using it.
    The consultation paper does not mention an exemption or discounted rate for local authorities or other public bodies who register a biodiversity gain rate. This should be explored as part of the implementation.
     
  2. impose financial penalties for provision of false or misleading information?
    Yes, as a last resort. The operator of the register should avoid this by providing clear guidance and advice and giving applicants the chance to correct genuine mistakes.

Question 43: Do you agree with our proposal to allow applicants to appeal a decision by the register operator where the applicant believes that the registration criteria have not been appropriately applied?

We are not able to comment based on the limited information set out in the consultation paper. Would the appeal go to the operator of the register or another organisation? As it is written the appeal process seems to favour applicants and it lacks transparency.

Additionality

Question 44: Do you agree with our proposals for additionality with respect to measures delivered within development sites?

It is helpful to see Defra’s thinking on the intersection between existing statutory requirements and net gain.

The consultation lists five existing requirements that will be allowed to count towards net gain.  For example, under “any measure delivered as part of a development” sustainable drainage systems and nutrient management will count towards net gain.

It is reasonable to consider additionality and avoid overloading developers with cost. However, this will dilute the impact of biodiversity net gain on some sites and the expectations of communities and other stakeholders will need to be managed.

Question 45: Do you think that the non-designated features or areas of statutory protected sites and/or local wildlife sites and local nature reserves, should be eligible for enhancement through biodiversity net gain?

We agree that both A and B should be eligible for enhancement through net gain. Who would determine which sites are suitable and which should not be disturbed? This is another aspect of net gain that depends on the availability of expertise in the right places in order to deliver the best environmental outcome.

Question 46: Do you agree that the enhancement of habitats, including designated features, within statutory protected sites should be allowed in the coastal, intertidal and marine environment as defined above?

Yes.

Question 47: Do you agree with our proposed approach to combining payments for biodiversity units with other payments for environmental services from the same parcel of land?

Yes.

Statutory biodiversity credits

Question 48: Are these proposals for statutory biodiversity credits sufficient to ensure, when supported by suitable guidance, that they are only used by developers as a last resort?

We are disappointed that Defra has pursued a system that collects biodiversity credits for use by government, rather than allowing councils to retain credits locally. The worst outcome for biodiversity net gain is that credits become the preferred option for developers, creating a national “tax” on development rather than restoring nature in the areas being developed.  

It is good that Defra has considered the risk of the credit system undermining the preferred options of onsite and local offsite delivery. At this point we cannot say confidently that Defra’s proposals will avoid this risk.

Question 49: Do you think there are any alternatives to our preferred approach to credit sales, such as those outlined above, which could be more effective at supporting the market while also providing a last resort option for developers?

Yes. Defra should look at ways to encourage councils to bring their own land onto the market for offsite delivery. As we suggest above, Defra should consider a light touch registration process for councils.

Question 50: Do the principles for how we will set, and review credit price cover the relevant considerations?

See answer above.

Question 51: Do you agree with the proposed principles for credit investment?

No. We fundamentally disagree with the way credits will work. Credits must be used in the area where development took place and this must be absolutely transparent.

Reporting, evaluation, and monitoring

Question 52: Do the above project-level management, monitoring, enforcement, and reporting proposals seem sufficient, achievable, and not overly burdensome on practitioners, developers, or planning authorities?

No, there are a number of concerns about the ability of councils to deliver the proposals for management, monitoring and enforcement.

  1. The proposed approach places significant new burdens on local planning authorities and this must be properly funded through the new burdens process.
    1. Section 106 agreements and conservation covenants are the two main tools put forward for ensuring that biodiversity commitments are delivered. The process for securing Section 106 agreements is well established, although it is not without its problems in making sure developers meet their obligations. Conservation covenants are completely new and there is little detail in the consultation on what they are and how they are expected to work in practice. Without this detail, we cannot be confident that there is enough time for local authority staff to be trained up in how to use them.
    2. Further clarity is needed on the requirement to check that biodiversity improvements have been carried out. Councils may not have the skills to do this, and further details is needed on how rigorous the checks should be. For example, will site visits be required?

Question 53: Do you think earned recognition has potential to help focus enforcement and scrutiny of biodiversity net gain assessments, reporting and monitoring?

No comment.

Question 54: Do the above proposals for policy-level reporting, evaluation and enforcement seem sufficient and achievable?

No. As we say in our response to Question 52 the proposals add significantly to the workload of local planning authorities.

Defra should look at again at the requirement to submit monitoring reports to the Local Planning Authority. If this is just data entry, could it be done more efficiently by another organisation?

Question 55: Considering the data requirements set out above and in greater detail in Annex C is there any additional data that you think should be included in the Biodiversity Reports?

No