Quick read

Biodiversity net gain regulations consultation

Gateley Legal

Article by

Defra is currently consulting in advance of issuing draft Biodiversity Net Gain regulations due to be made under the Environment Act 2021 (the Act). The consultation document can be found here:

Consultation on Biodiversity Net Gain Regulations and Implementation

The mandatory requirement to deliver a 10% net gain in biodiversity value for most development is likely to take effect in November 2023. While the consultation document contains more detail on how the system will work in practice, including development thresholds, exemptions, and procedures, in more immediate terms and of particular interest to developers, especially those currently navigating the challenges of nutrient mitigation and other environmental mitigation requirements, are the proposals dealing with additionality, the stacking of payments for environmental services and habitat banking.

How will Biodiversity Net Gain work?

Biodiversity Net Gain will work broadly as follows. Developers will need to set out in a Biodiversity Gain Plan submitted with their planning application, or subsequently, but before the development is commenced, how the 10% net gain in biodiversity will be delivered either:

  • On-site as part of the development,
  • Off-site on registered and allocated Gain Sites, or 
  • Through credits purchased through the market.

Gains (and biodiversity loss) are measured via the application of the Defra metric to pre-development biodiversity value as against post-development biodiversity value. Off-site habitat enhancement delivered on Gain Sites listed on the Biodiversity Gain Site Register maintained by the local authority will need to be secured for at least 30 years by the new legal tool of conservation covenants or via planning obligation (section 106 Agreement). The incentive to deliver gains locally is driven by policy, including the soon to be introduced Local Nature Recovery Strategies (see further below) and built into the metric itself, but it will be possible to deliver gains further afield (within England), where appropriate.

The significance of “Additionality”

Significantly, the consultation document addresses the inter-relationship of Biodiversity Net Gain with the delivery of other environmental services, under the principle of “Additionality”. The intention is to allow biodiversity gains to be delivered alongside other enhancement or mitigation measures, though they must be separately accounted for and recorded in the Register. More specifically, the consultation proposes that:

  • On-site measures for compliance with statutory obligations such as green infrastructure, sustainable drainage or nutrient mitigation may be counted towards net gain, IF the biodiversity metric recognises the uplift.
  • Measures aimed at mitigating and compensating for protected species, or for mitigating off-site impacts on protected sites, such as the creation of Suitable Alternative Natural Greenspace (SANG), could be counted towards the net gain calculation, although it is proposed that a small proportion of the gain “at least 10%” should come from separate activities or enhancements. As an example, if land is allocated for reptile translocation, then it would appear that habitat enhancements on such land could similarly be counted towards the delivery of the biodiversity gain requirement.
  • Actions and measures adopted under River Basin Management Plans could also go towards achieving biodiversity gain.

For landowners, it is proposed that payments they receive for biodiversity units could be combined with, or “stacked” with payments for other environmental services. This would include payments to farmers made under the forthcoming Environmental Land Management Schemes, for which practices and standards will be informed by the Local Nature Recovery Strategy for that area. These will be new spatial strategies introduced under the Act that will identify the relevant nature priorities and identify opportunities for enhancement in the area to which they relate. Defra consulted separately on procedures for their preparation and scope last Autumn, and with enabling provisions within the Act coming into force on 24 January, draft Regulations are expected soon.  It is anticipated that a wider range of landowners will look to enter into third party agreements, and to register their land as Gain Sites.

The importance of habitat banking

As regards habitat banking (where landowners carry out habitat enhancements in advance of development to which net gain or other enhancements can subsequently be allocated) the consultation paper on Biodiversity Net Gain recognises the importance of this approach for delivering a smooth supply of suitable sites for enhancements, especially in areas already struggling with capacity, and for larger strategic sites.

It is proposed that habitats created after 30 January 2020 will qualify for registration and for the sale of biodiversity units, provided it meets the other criteria for registration within the Biodiversity Gain Site Register. Again, legal agreements securing the land and enhancements measures within it, and for the allocation of gains for specific developments, will need to have an eye to the future in terms of compliance with both Biodiversity Net Gain and any other schemes to deliver environmental schemes, where relevant. This may not always be achievable: nutrient mitigation usually requires sites to be secured in perpetuity whereas Biodiversity Net Gain specifies a mere 30 years, but aligning mechanisms for delivery, management and monitoring to avoid duplication and inconsistency, where possible, will be key.

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.