COMMENT The UK is widely seen as one of the most nature-depleted countries in the world, due in part to a long history of industrialisation and intensification of agriculture. The abundance of species has declined by 17% over five years.
At the same time, the demands on land are set to increase from a growing population which needs homes and other facilities. Developers bringing forward schemes to serve that population increase face many hurdles while steering a site through the planning system – these can include the need to grapple with biodiversity net gain and nutrient neutrality. Addressing these matters may result in additional land being required, or financial contributions being made to offsite provision.
Providing biodiversity net gain is a requirement of national planning policy. However, it is anticipated that from November 2023 there will be a mandatory requirement for many developments to provide at least a 10% biodiversity net gain under the provisions of the Environment Act 2021.
Suitable habitat can be provided onsite as part of the application, subject to securing future management regimes. As an alternative, developers can deliver offsite mitigation directly or purchase credits in off-site schemes.
The government also proposes a centralised system of statutory biodiversity credits, although these are likely to be more expensive as a last resort. Full details of the scheme are yet to be announced following a number of consultations. The 10% requirement is a minimum, and it is likely that many authorities will set higher targets.
A sensible aim
Requiring habitat enhancement alongside new development is a sensible aim. However, how effective the system will be in providing a network of sustainable habitats which supports biodiversity remains to be seen, given that approvals will be on a site-by-site basis. Further, success depends on informed ongoing management, and there will probably be limited resources available for monitoring and enforcement.
Every new system risks unintended consequences. Irreplaceable habitats, such as ancient woodland, are to be excluded to ensure that a formulaic approach does not facilitate their destruction. However, given the need to demonstrate gain, the system may not incentivise voluntary environmental improvements pending the grant of planning permission. There is no doubt that refinements will be required as the scheme beds down.
In contrast, the need for nutrient neutrality relates only to parts of the country and results from European-derived habitat protection legislation. Many authorities have been informed by Natural England that development in certain catchments cannot proceed if it increases nutrients in the freshwater environment – creating the need for development to be nutrient neutral and stalling schemes. This arises out of the unfavourable condition of the affected catchments, particularly as a result of nitrogen and phosphorous pollution.
Complex solutions
The solutions can be complex. In some cases, bespoke schemes can be set up where, for example, wetlands are provided onsite and/or sufficient land is taken out of agricultural use to ensure the scheme does not increase nutrient loadings. Authorities can provide strategic solutions to mitigate the impacts of multiple sites, funded by developer contributions.
The government has also announced a national nutrient credit scheme via Natural England and is proposing to require water and sewerage companies to upgrade wastewater treatment works in affected areas by 2030.
Both these schemes will therefore result in more land being subject to some kind of environmental protection. Other environmental designations can also arise out of development – for example, the provision of suitable alternative natural greenspace to attract residents away from protected environmental sites.
Is there an alternative? If nutrient neutrality rules were scrapped in the threatened bonfire of European-derived legislation, then the stalled developments could proceed – but the relevant catchments would likely deteriorate. Dropping mandatory requirements for biodiversity net gain would remove what is intended to be a positive step to help much-needed nature recovery.
The politics of the day dictate how governments from time to time balance what can be competing desires for growth and environmental protection, and the instability of recent administrations has not helped in setting a clear direction. The Environment Act 2021 created a new Office for Environmental Protection to scrutinise government’s performance following Brexit. The OEP has recently highlighted the current government’s failures to meet certain environmental legislative deadlines.
With warnings of a long recession ahead, we may need to compromise. Planning authorities have some ability to make decisions based on local priorities, but within the scope of legal requirements. With increasing public and corporate acceptance of the need for action on the environment, it would be a bold government that waters down current or proposed legal environmental protections.
Claire Fallows is a planning partner at Charles Russell Speechlys
