Those in the know will be well aware that in a year’s time, developers seeking to turn a patch of land into a major development will have to create additional habitats within that scheme – or find a suitable and acceptable alternative “off-site” location. Under the Environment Act 2021, local authorities will be forced to ensure that any development delivers at least a 10% increase in biodiversity. Those applications that cannot do that must be thrown out.
The move – while clearly important from an environmental and, increasingly, wellbeing perspective – will undoubtedly mean more paperwork, more due diligence and perhaps some more headaches too when it comes to navigating the planning system. With just 12 months until the 10% rule becomes mandatory, how well prepared is the real estate sector, and what does it need to do today to ensure it is ready when November 2023 rolls around?
EG gathered four experts to provide answers to these questions: Julia Baker, head of nature services at Mott MacDonald; Alexis Perry, commercial director at Environment Bank; Nina Pindham, a barrister at No5 Barristers’ Chambers; and Emma Toovey, ecology director at Environment Bank. For all of them, early engagement is vital if the development community doesn’t want to get caught out by the Act.
Pindham says that while most of those who know about the forthcoming requirement are ready for it, there are still a frightening number who are blissfully unaware, adding that preparation is “critical to save headaches and adverse financial consequences that are avoidable down the line”.
She is keen to point out that while the 10% minimum will be a pre-commencement condition on applications, developers should not wait until starting on site. If they do, then those headaches and adverse financial consequences may no longer be avoidable.
Perry, who has a background in housebuilding, couldn’t agree more. “Ultimately, what the Act does is it gives real teeth now to enforcement,” he says. “If this isn’t adopted in the right way, if the habitat fails 10 or 15 years downstream, that liability is going to sit with the section 106 holder and so on. It is a high bar to planning entry, and it will increasingly become the case that if you haven’t thought about this as part of your planning application, there may be a refusal or it’s going to cause a severe delay to the application process.”
He adds: “There is a real incentive for this to be addressed at the very top boardroom level with every developer, really. And it’s that management of the design team to ensure a BNG strategy has been incorporated at the earliest stage. If it is, it doesn’t need to become a problem and it can support sustainable development in the right way. If it’s ignored, it’s going to create a financial consequence.”
Seeking clarity
Early engagement means understanding the full scope of the Act. That it applies not just to new applications but to amendments too, and that the 10% target is a floor, not a ceiling, and many local authorities have already set their own BNG targets – some substantially higher.
“At the moment we have several local planning authorities already requiring this,” says Mott MacDonald’s Baker. “And there is so much variation between local planning authorities. One really practical, useful tip is to make sure you get from your local planning authority that clarity on what they require for biodiversity net gain. Upfront, just check. Is it 10%? Is it 20%? What do local planning authorities want submitted as part of planning? What is going to be a pre-planning, pre-commencement condition?”
She says that understanding the requirements now, while the industry waits for the mandatory levels to come into force, will be vital in side-stepping those headaches and unintended financial consequences.
For Environment Bank’s Toovey, clarity is what is needed if the development community is to ensure it is prepared for the BNG requirement. She is hopeful that DEFRA and Natural England will share some of that early in 2023. Once that clarity is there, the sector can focus on upskilling and, importantly, knowledge sharing.
“From the developer’s perspective it might be quite a shock to be thinking about some scrub on their land that seems kind of low-value,” says Toovey. “So, there is certainly an adjustment needed from a developer’s perspective, but also in terms of the skill sets of those consultancy teams that you’re going to be working with.
“I’m sure they are all upskilling now very much, but it’s looking at habitats in a different way. We need more botanists in this sector, but also need to improve the skill sets of the local authorities and the planning teams that you are going to be working with. We are all upskilling at the same time to get our heads around this new regime and the new associated regulations and regulatory framework associated with that.”
Overwhelmingly, the experts believed that with collaboration, understanding and the urgency to act now, the development community should be able to navigate the demands of the Environment Act 2021 with few to no adverse consequences.
“The industry really, really does need to be thinking about this now, and really it needs to be engaging with this now,” says Pindham. “Get your ecologists on board at the outset. That needs to happen now, and it needs to be routine. It really is something that the industry needs to be aware of because there isn’t going to be an option. Those conditions are coming on planning permissions, whether people want them or not.”
The experts
- Julia Baker, head of nature services, Mott MacDonald
- Alexis Perry, commercial director, Environment Bank
- Nina Pindham, barrister, No5 Barristers’ Chambers
- Emma Toovey, ecology director, Environment Bank
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