Biodiversity Net Gain
BCT Response to Biodiversity Net Gain
Response to Consultation on Biodiversity Net Gain Regulations and Implementation (April 2022)
The Bat Conservation Trust welcomes this consultation and the opportunity to comment on Biodiversity Net Gain (BNG) regulations and implementation. BNG can deliver positive outcomes for biodiversity, but it is just one of a suite of tools and policies to contribute to meeting environmental ambitions and targets. To deliver genuine gains for biodiversity, particularly for protected species, the BNG system must be supported and delivered by the right regulations, guidance, governance, metric, resources, data and expertise along with an ambitious long term vision that ties in with the government’s intention to “leave our planet in a better condition for future generations.”
We note that in addition to the proposals in this consultation, changes to the National Planning Policy Framework (NPPF) and to Local Plans will be needed to support the effective delivery of BNG and we urge the Government to consider if the current approach matches that ambition. For example, local authorities should put in place Local Plans or supplementary guidance that specify at least a 10% net gain and should be encouraged to go further than 10%. We welcome the Government’s commitment to update National Policy Statements with biodiversity net gain statements.
The implementation of BNG must reinforce the mitigation hierarchy, starting with demonstrating avoidance of impacts, to first steer development away from the most important habitats and sites for nature. We welcome the Government’s acknowledgment that any development that impacts irreplaceable habitat cannot claim net gain but would like to see more emphasis on strongly advocating that irreplaceable habitat should not be impacted by development. The guidance defining irreplaceable habitats and setting out guidelines will be essential to ensuring these habitats are protected but want to see emphasis on the inclusion in the guidance of bespoke compensation measures as being utilised in rare exceptions only. After all, irreplaceable means that what is lost is lost and no amount of compensation makes that acceptable except in the most compelling and rare of cases.
While in principle there should be no development on statutory nature conservation sites and development that impacts the features of a protected site should not be considered to have achieved biodiversity net gain (in the same way as irreplaceable habitats). However, unfortunately and inappropriately, we know that development does occur in statutory nature conservation sites. In these cases, we agree with the Government that mandatory BNG should apply. Demonstrating and delivering genuine additionality of BNG measures on top of any existing or policy requirements in protected sites is essential.
We welcome the application of mandatory BNG to Nationally Significant Infrastructure Projects (NSIPs). However, the Government should go further, faster, to apply mandatory BNG to NSIPs, as these projects are the most environmentally damaging, economically-rich and long-term projects. Also, many NSIPs already implement the principle of net gain or no net loss. The Government should go beyond a 10% mandatory minimum net gain and increase the current 30-year maintenance period to ensure the delivery of genuine gains for nature. While many aspects of the approach for Town and Country Planning Act (TCPA) applications can be applied to terrestrial NSIP projects, we want to flag that the delivery of net gain for large-scale projects like NSIPs should be strategic, whilst maintaining local compensatory habitat to provide protection for species in addition to habitat.
In principle, we strongly disagree with statutory credits as a mechanism to meet the BNG requirement where BNG is not actually deliverable. When losses are such that BNG cannot be delivered, the environmental damage should not be allowed.
We welcome the Government’s acknowledgment that BNG must be delivered on top of, not replace, existing statutory duties or requirements. However, we question several of the Government’s proposals on applying the principle of additionality. BNG must be additional to any existing statutory duties or requirements, including for protecting and enhancing protected or designated sites, habitats or species.
BCT is concerned that the monitoring, reporting and enforcement requirements, in particular for onsite delivery of BNG, but also offsite gains, are not sufficient to ensure genuine gains are being delivered over the long-term in any sustainable way. Currently, onsite gains have no monitoring or reporting requirements. Also, any breach of the planning condition of BNG is practically unenforceable by the local planning authority. Government needs to get the governance right: onsite and offsite gains should be monitored to the same standard, a stronger level than is currently proposed. Offsite gains are proposed to be monitored through self-reporting by landowners, which will not ensure the right expertise, training and transparency in monitoring and reporting. There should be a requirement for the scrutiny of onsite and offsite gains by ecological experts through the local planning authority to monitor and report on the delivery of offsite gains. Local planning authorities need the resources and ecological expertise to monitor and scrutinise onsite gains over the full obligation period (minimum of 30 years). The Government should introduce an enforcement mechanism for local planning authorities if onsite or offsite gains are not delivered, as well as an enforcement mechanism to deal with any breaches.
We agree with the proposal in the consultation for a requirement to share biodiversity gain plan and monitoring report data with local environmental record centres (LERCs). As well as an obligation to submit to long-term repositories like LERCs, we would like to see the data on the NBN Atlas and shared on publicly accessible platform, such as Magic, wherever possible so that payment is not required to access the information. There should be a requirement for these data to be compatible with wider uses This will improve transparency and scrutiny and contribute to the overall environmental information base.
We would like to highlight opportunities to bring coherence with other policies and strategies. A key example is Local Nature Recovery Strategies which should help inform the application of the mitigation hierarchy to first direct development away from protected and important habitats and sites for species, including those identified for nature’s recovery. It would then help direct the delivery of onsite and offsite biodiversity net gain to ensure the best outcomes for local biodiversity. Defra should set out how biodiversity net gain plans and planning authorities should connect LNRSs to delivery of BNG.
The £4 million committed in the CSR21 for Local Planning Authorities to help prepare to implement Biodiversity Net Gain is not adequate, especially as BNG will now apply to NSIPs, as well as TCPA applications. In addition, many local authorities will also be producing Local Nature Recovery Strategies, which our colleagues in Link have found will require an additional £20.3 million annually for LNRS operational costs. LPAs are currently under-resourced and many lack the ecological expertise crucial to the delivery of LNRSs and BNG. A holistic funding approach to ensure that currently under-resourced LPAs have the adequate resources and the ecological expertise necessary for LNRS, BNG and the general scrutiny of planning applications is essential and missing from this consultation.
Finally, to state the vital need for the stance on permitted development as an exemption to be reviewed. Permitted development has the potential to cause negative and lasting environmental impacts and should not be exempt from mandatory BNG. This is especially in relation to the agriculture to residential conversion and in the conversion of office space to residential. At a minimum, species legislation, Green Infrastructure and BNG should be made matters for local consideration through prior approval of permitted development rights. Currently a significant proportion of local authorities are unclear on the need to consider Protected Species under permitted development and this situation must be addressed. The current proposals around BNG give an opportunity to do so.
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