Biodiversity Net Gain

Today is the day that Biodiversity Net Gain legislation came into effect for all major planning applications and it will shortly come into force for smaller applications. While there are plenty of articles about the broad brush mechanics of the policy here are our 10 top tips:

Land Acquisition

1 - Request a BNG assessment from the site vendor or make any offer subject to a satisfactory BNG assessment. Habitat Distinctiveness, Condition and Strategic significance are all key metrics that can materially impact a development site value.

2 - Ensure you do your due diligence on the site. It might not be immediately obvious as to whether habitat degradation has occurred in the run up to the sale of a site. If it has occurred then the requirement is that the highest value of the habitat that has been degraded is used. This could be expensive given the pre degradation baseline date is January 2020. Unauthorised degradation could trigger other site related enforcement issues and use restrictions which may prevent development.

3 - If working with a large landowner or local authority work together to discuss potential opportunities for local Habitat Bank creation. This is potentially a cheaper way of locally achieving the required mitigation than the purchase of Biodiversity credits. It could also generate an additional form of revenue.

Design

4 - Think about how new and improved habitats can be included and achieved within the proposed development from the outset and what can be sensibly protected from construction activities. Habitat, Hedgerow and watercourse works all need to be separately considered. Aim to achieve at least a 10% improvement over the baseline for each element on site before considering local habitat banks or purchasing Biodiversity credits. Be careful as to where and what improvements are proposed as other statutory consultees could raise objections eg CAA, airport operators, highways authorities et al.

5 - Check the relevant local planning policy for the development area to review whether or not higher 'gains' are required as some local authorities are already looking for higher net gains.  Be aware that certain types of development and forms of approval are currently exempt from the national requirements eg Householder applications.

6 - Have a comprehensive strategy for long term management of any new habitat features created, retained or enhanced. These have to be managed for a period of 30 years from completion of the development. Agree with the local authority the definition of completion and consider whether restrictions on end user titles or covenants on occupiers/purchasers are needed to ensure such areas can be suitably protected and managed for the required duration.

Planning

7 - Throughout the pre development period regularly check to ensure no habitat degradation has occurred. If so new assessments may be required prior to planning application registration. This is particularly important where a developer may not control a site.

8 - Submit a Biodiversity Net Gain Plan with your application - the contents is relatively straightforward and would include a pre and post development site assessment along with the metric calculation and details on how the management is to be secured. Include details of any contributions to habitat banks or Biodiversity Net Gain credits that may need to be purchased. Include evidence of the condition of the site where possible such as photos and surveys and ensure the report is complied by a suitably qualified Ecologist.

9 - Long term management and the Net Gain is to be secured through mandatory pre commencement conditions and in some cases via S106/Conservation Covenants. The BNG Plan must be explicitly approved by the local authority prior to the implementation of the development so carefully review the wording of any planning decision to avoid subsequent delay. Brief any sales and marketing teams on the development specific requirements including long term management and expected costs to ensure compliance with New Homes Quality Board requirements and to minimise the risk of any Ombudsmen claims.

Construction

10 - Ensure contractors, site teams and Customer Service teams/operatives are aware of the BNG requirements from the outset and that all relevant habitat protection measures are in place as soon as work commences. Regularly audit protection measures to ensure these are present and well maintained and ensure habitat management (including any watering of new planting) is also available. Be prepared to provide evidence of protected/enhanced and new habitat areas so as to satisfy any conveyancing queries. Non compliance with the Biodiversity Net Gain Plan and or S106/Conservation covenants can lead to enforcement action being taken by the local authority and significant reputational damage.

There are some great resources out there for anybody interested in ways in which BNG can be incorporated in the design of developments. These include:

CIEEM - https://cieem.net/resource/biodiversity-net-gain-good-practice-principles-for-development/

NHBC Foundation - https://www.nhbc.co.uk/foundation/biodiversity-in-new-housing-developments

The metric can be found here : https://www.gov.uk/guidance/biodiversity-metric-calculate-the-biodiversity-net-gain-of-a-project-or-development