Biodiversity net gain regulations and implementation consultation – Law Society response
The proposals
The Department for Environment, Food and Rural Affairs (DEFRA) asked for feedback on the scope of the biodiversity net gain regulations to be introduced under powers in the Environment Act 2021 under both:
- the Town and Country Planning Act 1990 (for conventional planning permissions)
- the Planning Act 2008 (for development consent orders and nationally significant infrastructure projects (NSIPs))
It concerns implementation of aspects of the Environment Act, which introduced a new mandatory requirement for developments that result in loss or degradation of habitat to provide at least a 10% biodiversity net gain.
This could be through on or off-site habitat improvements or the purchase of biodiversity credits.
Our view
We believe that 10% biodiversity net gain requirements should be applied as broadly as possible and that exemptions should be kept to a minimum.
However, where biodiversity impact is not significant, net gain requirements should be disapplied as they will considerably slow down the planning system and likely lead to enforcement difficulties.
We further believe that:
- off-site biodiversity gains should only be adopted as a last resort in order to ensure the legitimacy and longevity of the biodiversity net gain units market and overall delivery of the strategy
- there should be a general consistency of approach between the NSIPs and Town and Country Planning Act 1990 regimes
- the government’s role in the biodiversity net gain unit credit market should be to provide the overarching regulatory framework and associated guidance to enable the market to function efficiently and to avoid abuse by participants
- guidance should be issued to clarify details on aspects of implementation to provide certainty and allow the scheme to operate efficiently
Next steps
The consultation closed on 5 April 2022.
Responses will shape developing legislation, processes and guidance.