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DEFRA consultation on biodiversity net gain - Law Society response

11 February 2019

The Law Society has responded to the Department for Environment, Food and Rural Affairs' (DEFRA) consultation on biodiversity net gain: updating planning requirements.

This consultation sought views on how DEFRA can improve the planning system in England to protect the environment (biodiversity net gain) and build places to live and work.

DEFRA wanted opinions on their proposals to make biodiversity net gain necessary for developments when granting planning permission.

Biodiversity net gain is an approach which aims to leave the natural environment in a measurably better state than beforehand.

In particular, views were sought on:

  • standardising the approach so that it’s simpler and clearer for developers
  • whether they should add this requirement
  • how they could implement the net gain approach
  • how they should measure and monitor the net gain approach

They also sought evidence on how they could include other environmental improvements.

This consultation applied to England only.

The Law Society’s Planning and Environmental Law Committee focused on the areas of this consultation where we felt best able to contribute an informed view; namely the sections on scope, calculating and collecting the tariff, and delivering net gain in the planning system.

Summary of main recommendations

  • We support the government's aims in the consultation and believe that the best way to achieve a consistent framework for business which provides clarity and certainty through a streamlined process (the consultation objectives) is to mandate net gain in the planning process through a clear legal duty which is subject to prescribed exemptions.
  • We believe the tariff revenue should be collected locally (for example, through a local authority).
  • We believe that the tariff revenue should be spent through a blended model, allowing spending at both local and national levels.
  • We believe that if a dispute is only over biodiversity net gain requirements, then the planning appeal system, as currently operated, would be an inefficient way of settling matters that would likely result in the stalling or abandonment of developments.
  • We agree that there should be exemptions from mandatory net gain, particularly for small developments (unless the adverse biodiversity impact is significant), permitted development and developments where planning gain requirements are already very large.