Natural England has said that –
“Biodiversity Net Gain (BNG) is an approach to development, land and marine management that leaves biodiversity in a measurably better state than before the development took place.”
From January 2024 it will become mandatory for developers in England of new housing, commercial or industrial developments to show a measurable 10% Biodiversity Net Gain as part of their proposals. In April 2024 this requirement is expected to be extended to small sites, and on current plans it will apply to Nationally Significant Infrastructure Schemes from 2025. This article discusses some of the context of the new requirements.
Part of the relevant Schedule to the Environment Act 2021, which introduced this planning requirement states that –
“The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributed to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage.”
Essentially, developers need a form of baseline study confirming the existing biodiversity status: and then to be able to show how they have planned to enhance biodiversity by means of measurable improvements. Biodiversity improvements use habitats as a proxy for species and biodiversity protection: for example showing what has been done with hedgerows or trees instead of counting dormice. This is done by the application of a Biodiversity Metric, usually used by an ecologist. Biodiversity Net Gain is required to be applied first to onsite gains. There are rules allowing off-site gains to be bought in and applied in limited circumstances when fully onsite gains are not achievable, and as a last resort, statutory credits can be purchased from a government-run register. The aim is to secure habitats for at least 30 years.
Where I have worked with companies to consider the new planning obligations on Biodiversity Net Gain, several aspects of the new policy have become clear.
Companies and groups bringing forward planning and development proposals could choose to take a ‘minimal compliance’ view of the new planning obligations. On this view, Biodiversity Net Gain just becomes another procedural step to be got through during planning for new developments, with another set of expert reports to be commissioned and steps taken. It is not overwhelmingly difficult to address, but there are some significant missed opportunities in this approach. If companies take little interest in the substance of Biodiversity Net Gain, they will essentially leave it to the ecologists that they commission to broker a ‘tick box’ approach with the ecologists working for the regulators. Some benefits may be delivered for the biodiversity of their sites, but no one will have done much to think about the company or group’s interaction with the wider issues, related legislative aims that they will be required to meet, or the potential benefits to companies of being on the front foot with active and coordinated policies on biodiversity.
Instead, I have tried to argue that companies need some awareness of the wider picture on biodiversity, because that is going to condition and drive government policy, legislation and the wider business context in which they operate. Worldwide, a million species may be facing extinction, and in 2022, 188 governments signed up to the Kunming-Montreal Global Biodiversity Framework, an international agreement setting out what the majority of the world’s governments agree needs to be done about it. That is already feeding through directly into national legislation, as it should. For example, in January 2024 the Welsh Government has promised an Environmental Governance and Biodiversity Targets Bill (see my earlier post on that in the link below) which will directly reference the Global Biodiversity Framework, and in October 2023 it adopted new planning guidance to address the ‘nature emergency’.
Biodiversity Net Gain is one aspect of a wider group of legislative and regulatory provisions that have already been enacted. These include other general duties to conserve and enhance biodiversity, to adopt Local Nature Recovery Strategies, to have separate species conservation strategies, and to meet separate environmental targets, including those set out in the Environmental Improvement Plan 2023. The approach of simply meeting the immediate planning obligations of Biodiversity Net Gain would result in being less well prepared to adapt to the whole legislative context of increasing protection and enhancement of biodiversity. I set out some of the more detailed statutory objectives that already apply in a separate article on Biodiversity and Law as it applies in England, (see link below).
The state of biodiversity challenges both internationally, and within the U.K. - more than half of Britain’s biodiversity has been lost since the Industrial Revolution - is already generating a wider international and national response. There are increasingly strong links, which were developed further at the COP28 climate negotiations in the UAE, between actions to address climate change under the United Nations Framework Convention on Climate Change ‘UNFCCC’ and action to address biodiversity loss under the Convention on Biological Diversity. We have explored this in a short film on Biodiversity and Climate Change from our climate website The Borrowed Earth Project (see link below).
Companies could integrate their work on Biodiversity Net Gain, with a review of its impact on their land holdings, where there may be potential benefits as well as costs. They need to know where that fits in to their preparation of ESG policies, reporting under the Task Force on Nature-Related Financial Disclosures, and their other policies on water, waste, habitats and other operations affecting biodiversity, such as pesticides and chemical usage. Increasingly, those areas will be brought within the scope of national regulations on protecting and enhancing biodiversity. Companies may well have much of this work in hand already.
In itself, Biodiversity Net Gain will deliver onsite benefits and it will be a welcome means of addressing one aspect of the crisis affecting biodiversity in Britain. But the companies and developers that are able to ”see the wood for the trees” will be considering where this new set of planning obligations fits in to the wider range of legislation and regulation to protect and enhance biodiversity, and how to position themselves so as to be able contribute most effectively, and to take advantage of new opportunities.
Article on other legislative and regulatory requirements applicable to England: Biodiversity and Law:
https://www.wyesideconsulting.com/news/biodiversity-and-law-part-2-england
Post on Wales’ Environmental Governance and Biodiversity Targets Bill:
https://www.wyesideconsulting.com/news/wales-environmental-governance-and-biodiversity-targets-bill
The Borrowed Earth Project’s film Biodiversity and Climate Change:
https://borrowedearthproject.com/blog/abh2va574l87wdxwe78zk0wt4pwnw2