How We Live... Sustainably (Video)

• Published date: 30 March 2023
• Subject Matter: Environment, Real Estate and Construction, Environmental Law, Construction & Planning, Real Estate
• Law Firm: Gowling WLG
• Author: Ms Anjali Bancroft, Ben Stansfield and Ed Colreavy

New biodiversity net gain (BNG) rules are set to come into force that mean from November 2023, developments granted planning permission will need to deliver at least 10% net gain in biodiversity, compared with the pre-development site condition.

Although the BNG requirement may be some way off, it is critical that developers think now about how they will satisfy the rules, which includes a reassessment of your land acquisition strategy and a flexible solution as to how and where you will deliver BNG.

The Government recently published further guidance on the implementation of BNG with more detail expected in the coming weeks and months, as well as covering that guidance in detail. In this webinar, our panel explores:

• Why biodiversity matters
• What the BNG rules require
• What the recent guidance from Government means for developers and how it impacts BNG delivery strategies
• How planners need to address BNG in their applications
• How land deals need to address BNG

With few exceptions, BNG applies to everyone undertaking development, but this session will focus particularly on the impacts for the living sector, whether a developer, a contractor, a planner or an ecologist.

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Transcript

Anjali Bancroft: Good morning everyone and thank you for joining us and a very warm welcome. I am delighted to be hosting this webinar, the latest in our How We Live Sustainably series. Today we are focusing on biodiversity net gain. My name is Anjali Bancroft and I am a principal associate in our housing and regeneration team focusing on helping developers acquire and dispose of land for residential development.

I am joined today by our presenters, firstly Ben Stansfield, a sustainability partner in our planning and environment team. Ben is advising a number of our clients, house-builders, logistics and renewable energy developers in relation to the risks and opportunities presented by biodiversity net gain and is currently advising on the creation of a number of off-site habitat banks, therefore dealing with many of the practicalities as to how BNG is to be delivered.

We are also joined today by Ed Colreavy, a partner in our housing and regeneration team. Now Ed advises house-builders and developers on acquisitions and disposals and, alongside Ben, has spent some time speaking to our clients recently in relation to practical implications of biodiversity net gain for transactional work.

So our topic today is BNG. We will look at the mandatory requirements coming into force, the recent Government guidance from February 2023 and the practical implications for compliance. Now just a few points on house-keeping before we start. As this is a webinar you may see that the chat function has been disabled. Now we have planned in some time to answer some of your questions at the end of the presentation and if you do have questions, please do feel free to use the Q&A function as and when these questions arise and we will look at them at the end. Now if we do not get to all of your questions we are more than happy to follow up so if you want to drop your contact details, we are more than happy to follow up with you after this session. We will be recording this session as it is a webinar and we will be looking to circulate that following the end of the session and it will also be uploaded to our website. The session is planned to run for about an hour so until about 11 o'clock and now I will hand over to Ben to start things off.

Ben Stansfield: Thanks Anjali. Good morning everyone, welcome to Stansfield Terrace here in Essex. I would be in the office with my colleagues if it were not for the train strike but never mind. So I am going to talk to you about BNG, I am going to cover some of the regulatory and planning issues and Ed will deal with some of the transactional and the meaty deal specific issues.

I am going to set the scene today by telling you why biodiversity matters with one of my favourite graphics from the World in Data website. This is a global image and it tells us really why we are in a biodiversity crisis. So 10,000 years ago the world was lovely, you know we had ... nearly 60% was forest, 40% of our usable land was grassland. I mean obviously we had deserts, glaciers, terrain, all that kind of stuff, unusable land but the land that could be used could be used for growing stuff. It was grassland and forest and it was lovely. About 5,000 years ago we built the pyramids, we started to farm and it has been slowly degrading I guess since then. So if you look at our 2018-2019 figures, we do not have anything more up to date than that, you can see that we have lost a third of our forests and we have lost nearly three quarters, give or take, of our grassland and we have replaced that with buildings and agriculture. So if anyone ever points the finger at the development industry and says oh it is the developers who destroyed biodiversity, you can actually see, only 1% of our land is urban and built up and that is globally, I do not have the UK figures. I appreciate that would be even more insightful today but 15% of our land is used for growing crops for human consumption but a third of our usable land is for animals. Animal agriculture and grazing and producing crops for those animals as well so you can see very visually why we are in a potentially biodiversity, well we are in a biodiversity crisis and how we are using land and the whole purpose of the biodiversity net gain policy regime is to start replacing it, some of that lost biodiversity. We might not be able to replace the land but we can certainly improve nature that was previously with us.

Right so that is the scene beautifully set I hope. On to the basics. So the biodiversity net gain regime will start for most developments in November this year. Which means you need to start thinking about it now if you have a large application for planning permission that you are putting together, that is likely to get planning permission in November or subsequently. If you have got a smaller site and we can talk about the sort of split start if you like for BNG, some of it will start next year. If you have got a small start, so up to nine residential houses or if you do not know how many houses you are building, if you have got half a hectare or less than you are a small start, small site, and this all kicks in for you next year.

But you will be required, as a result, well you will be required to improve biodiversity by 10%. So you take a baseline, your pre-development baseline, you work out what the biodiversity value of that site is and then you need to improve that sort of like for like or better for like, improvement by at least 10%.

The biodiversity value of your site will be measured using a DEFRA metric. We are currently on metric, I think, 3.1 and the recent response to Government consultation of the guidance which was published in February, there is talk about having a biodiversity metric 4.0 so changes are afoot. The biodiversity metric is, I sort of joke, that it is way beyond my pay grade, it is, you know, you will need a very competent and qualified ecologist to help you evaluate the biodiversity value of your site. It is pretty complicated stuff and I know the groove in which I sit and the metric is not it.

Really important to get our heads around the difference between units and credits. So you will need to, as I say, work out the biodiversity value of your site, how many units that is and you will need to create or acquire biodiversity units, so either on your own site or off-site. If all else fails there is a in case of emergency break glass solution which will be buying biodiversity credits. So the statutory credit regime where the Secretary of State will, you can buy credits from the Secretary of State and use those to satisfy your obligation if, for whatever reason, the planning system slows you down. So, there is little chance of the new regime slowing down development in that sense.

Additionality - so what do I mean by that, and we will talk about stacking in a minute but additionality in this sense means that so if, ordinarily to get your planning permission you would need to do some landscaping let us say or create a sang or something like that, create some open space. That cannot be used for biodiversity net gain. So biodiversity net gain needs to be over and above that which you would ordinarily need to provide or do in order to secure planning. So that is additionality.

The Government is alive to the fact that some folk, not necessarily nor obviously on this webinar, but some folk might be tempted to degrade the biodiversity value of their site prior to getting planning so deliberately reduce the biodiversity value of the site in order that 10% is easier to obtain. The Government are alive to that, there will be rules, there will be regulations rather addressing this point and essentially any site degradation will be taken account of and so that we will probably go back to the, I think, it is January or April 2020, which is when the Environment Bill, which is the framework legislation for the BNG rules, that is when that sort of came back into parliament for consideration. So January 2020 would be the key date there.

Maintenance - so the works, the biodiversity works that you can provide will need to be maintained. They will need to be provided and maintained for at least 30 years. So really quite a long time and that has sort of implications on cost, liabilities for landowners, all that kind of stuff which we will talk about shortly.

A biodiversity gain plan will need to be submitted to the local planning authority as part of your, either your application or prior to commencement and there is a condition which ,I think, I will flash up in a moment which will be deemed to be included in all planning permissions granted from November 2023.

That potentially raises a JR risk which again, I think, Ed will cover subsequently. And how will these works, these...