In seven months, the Environment Act 2021 transitional period ends and the requirement for at least a 10% biodiversity net gain (BNG) requirement on new developments becomes mandatory. Some local planning authorities (LPAs) already have policies in place, but many do not. Those that do, provide a strong base to start from in relation to working with communities, developers and landowners to enhance nature and help mitigate climate change.
A year ago, Carter Jonas researched the 322 English LPAs and analysed how frequently BNG measures had been incorporated into local plans. A year on, we have revisited this research to identify what further progress has been made.
Last year, our research found that only 5.3% (17) of the 322 LPAs had adopted a BNG policy and 22.7% (73) had policies emerging through local plan reviews. Correspondingly, 72.0% of all LPAs had neither adopted a BNG policy nor had one emerging in their local plan.
A year on, the gap between those with an emerging policy and those without has narrowed, but only slightly. As of Q4 2022, just under 8.7% had adopted a net gain policy and 31.7% had one emerging, leaving 59.6% without any BNG policy. This represents a 64.7% increase in those who have adopted policies and a 39.7% increase in emerging policies.
Of those LPAs which have made substantial progress, there is a noteworthy difference between those which declared a climate emergency and those which have not. As of Q4 2022, 41.8% of LPAs with an adopted or emerging policy had declared a climate emergency. This compares to 35.7% of LPAs that had an adopted or emerging policy but hadn’t declared a climate emergency.
Providing guidance on BNG and integrating that into the local plan is a key action that LPAs can take in their strategies to address the climate emergency. As such, it is unsurprising that these LPAs have been proactive in giving BNG full weight in their planning process. It signifies a commitment to environmental policy and acknowledges a local role in reaching climate change goals.
There has been an increase in the number of LPAs that are proposing a level of net gain beyond the minimum statutory requirement. At Q4 2022, the number of adopted policies calling for a higher percentage of BNG had risen to four (from one), with 13 emerging (up from nine) through local plan reviews. Typically, these LPAs are imposing a requirement for 20% net gain. Consistent with the previous point, of these LPAs, 80% have declared a climate emergency – signifying that environmental policy is a high priority.
Interestingly, the first LPAs to adopt policies calling for net gain greater than 10% are ‘predominantly urban’ locations. In Birmingham, for instance, an ‘Issues and Options’ report (published October 2022) states that the city council is considering a higher percentage of BNG because ‘the majority of development sites will be on brownfield land with limited biodiversity value’. As such, it is claimed that the base biodiversity of developments will be low (although brownfield sites can also be biodiverse), and so a 10% increase will be negligible.
Other urban areas may also opt for higher levels to ensure the natural environment is enhanced for local communities, with the subsequent green spaces and better air quality delivering valuable health and wellbeing benefits to those in towns and cities. There is also a growing concern among policymakers that urban dwellers and children growing up in urban areas are at a risk of becoming disengaged from the natural world if they do not have ready access to green and biodiverse spaces. Increased levels of BNG provides a practical solution to this.
Although the Government’s intention (as is reiterated in many LPAs’ policies) is for BNG to be fulfilled on-site, there will invariably be circumstances, such as in high value urban locations, where viability calculations will lead to BNG being provided off-site.
Some LPAs are starting to develop their own habitat banks to help accelerate the BNG market and facilitate transactions within their localities. Plymouth City Council is an example of this, having recently signed off on a new ‘habitat banking vehicle’. These initiatives are likely to help speed up the delivery of developments within their boundaries by offering a ready-made BNG solution. They also allow transparency on the details of the habitat banks and for unit values and spending to be published. A similar approach is already adopted in places where financial contributions are levied towards mitigation under the Habitats Regulations Assessment regime, e.g. the creation of Suitable Alternative Natural Greenspaces or SANGs. It does, however, raise an issue of an actual or perceived conflict of interest for LPAs selling units to applicants.
As the BNG market matures and becomes more transparent, we will be able to gain a better understanding of the options, the scope and the complexities that arise from it.
Kieron Gregson is associate partner at Carter Jonas (London).
