Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

New measures will be brought forward…to improve building safety.

An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

New measures will be brought forward…to improve building safety.”

Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

Strengthening the relevant enforcement powers to hold building owners and managers to account.

Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

My government will prioritise investment in infrastructure…”

The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

The Strategy will have two key aims:

To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

This means proposals to transform this country with better infrastructure, better education, and better technology.

We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

These increased powers and funding will mean more local democratic responsibility and accountability.

We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

To support business, my government will…bring forward changes to business rates.

The Government is committed to conducting a fundamental review of business rates.

The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.

Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

in our trade negotiations, never compromise on our high environmental protection

We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Don’t Print The Environment Bill

Two reasons not to press print:

It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.

Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.

However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.

I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.

NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.

Environmental Governance (Part 1 of the Bill)

This covers the ground previously mapped out in the December 2018 draft Environment (Principles and Governance) Bill which I covered in my 22 December 2018 blog post The Office For Environmental Protection, although the ground has moved substantially.

Some of the changes, and the reasoning for them, are summarised in the Government’s Response (published alongside the Bill on 15 October 2019) to the House of Commons Environment, Food and Rural Affairs Committee’s Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (30 April 2019).

Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:

Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.

Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).

As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:

(a) the principle that environmental protection should be integrated into

the making of policies

(b) the principle of preventative action to avert environmental damage

(c) the precautionary principle, so far as relating to the environment

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.

The following were in the draft but no longer appear:

⁃ the principle of sustainable development

⁃ the principle of public access to environmental information

⁃ the principle of public participation in environmental decision-making, and

⁃ the principle of access to justice in relation to environmental matters

I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?

Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.

The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –

(a) the protection of the natural environment, and

(b) the improvement of the natural environment”.

One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:

We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”

My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.

I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.

To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.

(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.

(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).

(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.

(8) Where the Upper Tribunal makes a statement of non-compliance it may grant

any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or

(b) be detrimental to good administration.”

The Government’s Response said this:

The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”

Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.

There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:

⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008

⁃ taxation, spending or the allocation of resources within government.

Thumbnail sketch of the rest of the Bill

Part 3 covers waste and resource efficiency, including:

⁃ producer responsibility obligations

⁃ deposit schemes and charges for single use plastic items

⁃ managing waste

⁃ waste enforcement

Part 4 covers air quality and the environmental recall of motor vehicles.

Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.

Part 6 covers nature and biodiversity, including:

⁃ biodiversity

⁃ local nature recovery strategies

⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).

The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:

Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.

Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.

More anon.

Part 7 covers conservation covenants.

These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.

As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.

Again, more anon.

Concluding remarks

So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.

Admission: I did press print.

Simon Ricketts, 19 October 2019

Personal views, et cetera

Biodiversity Net Gain: A Ladybird Guide

Whoops I did it again: agreed to give a talk on a subject before researching it. These are no more than my notes but I hope the links at least are useful.

The Chancellor announced in his Spring Statement that “following consultation, the government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England, ensuring that the delivery of much-needed infrastructure and housing is not at the expense of vital biodiversity.”

A DEFRA blog post was published the same day, quoting Michael Gove:

Mandating biodiversity net gain will ensure wildlife thrives at the same time as addressing the need to build new homes. Whether it’s through planting more trees or creating green corridors, developers will now be required to place the environment at the heart of new developments.

This new approach will not only improve habitats for wildlife and create healthier places to live and work, but is central in our ambition to leave the environment in a better state for future generations.

This is what we have committed to do in any event so as to comply with our obligations under the UN Convention on Biological Diversity which we ratified in 1994. In order to seek to meet the Aichi 2015 – 2020 biodiversity targets the UK has committed as one of its “priority actions“, that it will, “through reforms of the planning system, take a strategic approach to planning for nature within and across local areas. This approach will guide development to the best locations, encourage greener design and enable development to enhance natural networks. We will retain the protection and improvement of the natural environment as core objectives of the planning system.”

The UK’s Joint Committee for Nature Conservation reported on progress in its 6th National Report to the Convention on Biological Diversity (January 2019), submitted to the Convention’s Secretariat on 11 March 2019.

The principle of requiring biodiversity net gain is supported not just by environmental groups but by development industry bodies – see for instance UK Green Building Council open letter dated 1 March 2019 to the Chancellor:

We […] look to the Government to establish the long-term legal framework needed to fulfil its pledge to “leave the environment in a better state than we found it” – and the proposed Environment Bill is the opportunity to do so. The Bill can provide the foundation for a shift from an economy in which business aims to limit its impact on the environment towards an economy that is restorative and regenerative by design.

We are calling on the Government to use the Bill to set legally binding targets for the achievement of environmental objectives – including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste. By setting binding targets, the Government can give the construction and property sector the confidence and certainty we need to help drive nature’s recovery, and set a level playing field that enables businesses who do the right thing to be rewarded.”

The letter was signed by representatives of the following organisations (a pretty good list!):

Argent (Property Development) Services LLP

Atelier Ten

BAM Construct UK

BAM Nuttall Ltd

Barratt Developments Plc

Bennetts Associates

Berkeley Group Holdings

BRE

British Land

Clarion Housing Group

Colliers International

GS8

Hoare Lea

Interface

JLL

Kingspan Insulation Ltd

Lendlease

Linkcity

Redrow plc

Telford Homes Plc

William Hare Ltd

Willmott Dixon

WSP

So what lies ahead? This is an initiative which has real momentum, but requires careful implementation if it is not on the one hand to be adding unreasonably to the burden of applicants and authorities (in terms of what further documentation and analysis is required and/or in terms of placing the hurdle for an acceptable scheme impossibly high) or on the other hand to be so lax as to be providing nothing over and over present policy requirements.

DEFRA published on 2 December 2018 its Net gain: consultation proposals document, giving a deadline for responses of 10 February 2019.

The document defines net gain as follows:

Net gain is an approach to development that aims to leave the natural environment in a measurably better state than beforehand. This means protecting existing habitats and ensuring that lost or degraded environmental features are compensated for by restoring or creating environmental features that are of greater value to wildlife and people. It does not change the fact that losses should be avoided where possible, a key part of adhering to a core environmental planning principle called the mitigation hierarchy. Net gain is not a new concept. Several countries around the world have already adopted biodiversity net gain policies and net gain for biodiversity is already supported through national planning policy.”

A footnote to passage notes:

NPPF paragraph 170 states that planning policies and decisions should minimise impacts on and provide net gains for biodiversity; paragraph 174 requires plans to pursue opportunities for securing measurable net gains; paragraph 175 requires planning decisions to encourage biodiversity improvements in and around developments and paragraph 118 states that the planning system should take opportunities to secure net environmental gains“.

The consultation document is a detailed document, but this inset within it summarises the proposed role of biodiversity net gain in the planning system:

Our proposal is that biodiversity net gain will be delivered within the existing planning and development process. This summary is illustrated in the infographic that follows.

When assessing potential development sites, habitat surveys will identify habitats and their condition as is already done for much development. Surveys help identify opportunities for enhancement as part of green infrastructure as well as possible constraints.

Development design will proceed as normal, but better informed by figures for biodiversity losses and gains. A standard biodiversity metric will be populated with habitat information from the site assessment and landscape plans. This will help demonstrate at an early stage that harm has been avoided as far as possible and that new green infrastructure will be of good environmental quality. The metric could also help to anticipate the costs of achieving net gain to factor these into land purchase where possible. No existing planning protection for the environment will be weakened and the principle of avoiding harm first (known as the “mitigation hierarchy”) will continue to ensure that preventing damage to nature will always be prioritised, wherever possible.

If net gain cannot be achieved on site, the metric would provide the right information to discuss habitat enhancement or creation with local providers or with the local authority during pre-application negotiations. The tariff rate would offer a guide for the upper limit of habitat compensation costs, alongside information from growing habitat creation markets.

When preparing local plans, local authorities are able to identify opportunities for habitat improvement that would benefit local people and support nature recovery. They would be able to choose to bring improvement sites forward themselves or work with other providers.

When developers and local planning authorities are consulting with the local community prior to submitting a planning application, it will be possible to use biodiversity net gain figures and habitat enhancement measures to explain the benefits and costs of a development proposal more transparently.

With clearer expectations, developers will be able to submit planning applications with greater confidence that proposals can be supported on biodiversity grounds.

For local authorities, transparent figures for biodiversity losses and gains can be quickly checked and provide confidence that impacts will be positive. Figures will also indicate the environmental quality of green infrastructure as part of development design.

As part of the planning permission, developers would sign up to predictable conditions, obligations or a tariff payment to secure biodiversity net gain. The availability of a tariff would prevent planning permission from being delayed by net gain requirements, and local authorities will be able to demonstrate that positive impacts to help improve the environment for local communities have been secured.”

The full list of the 45 consultation questions within the document demonstrates the potential complexity of what is proposed:

From a practical perspective, key issues are plainly going to include

⁃ establishing a robust ‘biodiversity unit’ metric

⁃ determining what would the required level of improvement (where does 10% come from?)

⁃ determining the circumstances in which a tariff or other off-site arrangement is appropriate and calculating its quantum

⁃ arriving at practical delivery mechanisms, by way of planning conditions, section 106 obligations and/or CIL, that meet relevant legal and policy requirements.

What I would love to understand is really how “mandated” the proposed requirements will be in practice. Does the Government envisage that the detailed regime can be bolted into the existing planning system by way of amendments to the PPG (which seems implausible given the potential nature of the tariff measures in particular) or will the Environment Bill be prescriptive in terms of what precisely will be required?

DEFRA is apparently due to respond to the consultation shortly, with the Bill likely to be published before the summer recess but, dear reader from the near future, you are possibly looking back at this blog post thinking “well that didn’t age well…”

Simon Ricketts, 30 March 2019

Personal views, et cetera