Locations
This briefing is focused on the opportunities for land managers to play a part in the obligation on developers to deliver Biodiversity Net Gain (BNG).
Land managers include:
- Landowners;
- Farmers;
- Local authorities; and
- Charities such as the Wildlife Trusts.
It is part of a series of briefings prepared by Fieldfisher's Planning and Environment Group on the different aspects of BNG.
In this series we will also be focusing on developers' and Local Planning Authorities' (LPA) perspectives, and how Conservation Covenants, Section 106 Agreements and conditions will be used.
BNG obligation – a brief recap
The Environment Act 2021 introduced a deemed planning condition for nearly all development granted planning permission after a date to be confirmed in January 2024.
Mandatory BNG will only apply to new applications for planning permission made after the implementation date.
This means that before development can commence, the developer must demonstrate that it will deliver biodiversity net gain of at least 10%, which will be maintained for 30 years or more.
The condition requires a biodiversity gain plan to be submitted and approved by LPA before development can lawfully commence.
It should contain an assessment of the value of natural habitats before development and after development and ensure that at least a 10% net gain is achieved.
The LPA has to be satisfied that the habitat enhancement will be maintained for at least 30 years after the development is completed by virtue of:
- A condition subject to which the planning permission is granted; or
- A planning obligation (section 106 Agreement); or
- A conservation covenant.
A biodiversity gain site register records biodiversity enhancement for registered off-site biodiversity gain.
The purpose of the register is to record allocations of off-site biodiversity gains to developments and make this information publicly available.
Opportunities for Land Managers
- The most obvious opportunities for land managers are to create an alternate source of long-term income, which can form part of Local Nature Recovery Strategies.
- Land managers will be able to:
- Create or enhance habitat for the purpose of selling biodiversity units; and
- Stack payments for environmental services to sell both biodiversity units and nutrient credits from the same nature-based intervention, such as the creation or enhancement of a wetland on the same parcel of land.
- Land managers can sell off-site biodiversity units to a developer in partnership with a local authority through a habitat bank operator or through a broker on a trading platform.
- Landowners will need to calculate how many biodiversity units they have on a site utilising a qualified ecologist and the biodiversity metric. It is possible to create biodiversity units before you sell them. This is known as habitat banking.
- Landowners need to commit to managing the habitat for at least 30 years. This can be done by a planning obligation (Section 106 Agreements) with an LPA or a conservation covenant with a responsible body. Conservation covenants are private, voluntary agreements between a landowner and the responsible body. They can bind subsequent owners of the land.
- Land managers will produce on a habitat management and monitoring plan (HMMP) with the LPA or responsible body.
- Pricing biodiversity units will be critical. Land managers will need to assess what they can offer, the costs of managing the land over 30 years as well as the costs of HMMP, legal and other professional costs, insurance and inflation. Questions to consider include:
- Would it benefit land managers to work together as part of partnership?
- What are the tax implications if the land is removed from agricultural production?
- What are the exit provisions?
- Income or lump sum payments are also an important factor. We are aware of some land managers being offered a lump sum for a significant area for land for 30 years. There was no annual income, indexation, or recognition that the land is likely to be producing income in excess of the sum being offered.
- Developers will want to know that the land is being managed properly and will need to be able to audit the entire process. This will impact on planning enforcement process but also the developers' wider ESG commitments and reporting.
- A market for the trading of biodiversity units will emerge, although the government has confirmed it will not develop a centralised trading platform for this.
Next Steps
By the end of November 2023, the government will publish all guidance and the regulations. This will include:
- The statutory biodiversity metric, critical for calculating the correct biodiversity net gain;
- The draft biodiversity net gain plan template, for developers to prepare for what they will need to complete during the planning application;
- The HMMP template; and
- BNG guidance that sets out further advice for landowners, developers, and LPA.
We work with developers and land managers on the legal aspects of the delivery of BNG and the LPA requirements and obligations.
To discuss the opportunities that BNG may offer, please contact a member of Fieldfisher's Planning and Environment Group.