RSK Wilding responds to two Government consultations on Biodiversity Net Gain
RSK Wilding have been very happy to provide responses to two Government biodiversity net gain (BNG) consultations this month, one on ‘Improving the implementation of BNG for minor, medium and brownfield development’ and the other on ‘BNG for nationally significant infrastructure projects (NSIPs)’. Essentially these are covering the two extreme ends of BNG implementation, from the very smallest development projects to the very largest. But both are of great significance for the relatively new BNG market, albeit in different ways.
In summary:
- We feel the Government should not risk breaching domestic and international laws by expanding BNG exemptions while the laws are still in their infancy.
- Letting even more developments ‘off the hook’ with exemptions (which the Government proposes), will not only be bad for nature but will also threaten the developing BNG market – the latter needs to be healthy and robust if it is to support nature-friendly development (as is the entire aim of BNG).
- We believe that a simple area-based exemption (i.e. all developments <0.1 ha in size to be exempt from BNG), will make the system simpler and clearer for LPAs and developers alike, reducing delays and speeding up development.
- If the Government funded LPAs properly, it would solve a lot of problems in the planning system that are currently being falsely blamed on BNG, bats and newts (as suggested both by the proposed changes to BNG for small sites and indeed by Part III of the Planning & Infrastructure Bill).
- With regards to brownfield development, Open Mosaic Habitat (OMH) is an important high distinctiveness habitat and really should be compensated with other OMH, if at all possible – it is well-defined under UKHab and is actually not that difficult to recreate.
- We largely welcome the proposals for BNG for NSIPs; in particular, making it easier to deliver BNG off-site would be good for developers and lead to more landscape-scale nature recovery.
- We also feel there are opportunities for making BNG for NSIPs more proportionate – this could include relaxing the rules on how the baseline is calculated (which can be especially punitive for schemes covering large distances; e.g. pipelines), or changing the definition of a temporary impact in the Metric to reflect the longer construction periods for these larger schemes.
Improving the implementation of BNG for minor, medium and brownfield development
We at Wilding very much understand the problems with delivering BNG for smaller sites, with the cost, complexity and administrative burden often disproportionate to the impact. However, we also understand that a very large proportion of smaller developments (86% of all applications), are currently managing to slip through the BNG net by claiming exemption to the regulations (often on rather tenuous grounds). As noted in a recent Eftec report, this widespread mis-use of exemptions, including the de minimis exemption, is not only inhibiting the growth of the BNG industry but also, more importantly, means that large areas of land that could have been restored for nature will not be.
As is so often the case, it is the defunding of local authorities that is largely to blame here, with most LPAs having insufficient resource or expertise to challenge those developers claiming exemption. Our solution is to simplify the process by introducing an area-based (rather than impact-based) de minimis threshold of 0.1 hectares (i.e. anything smaller than this is exempt from BNG, unless priority habitat is present). This will significantly reduce the confusion, cost and delays for planning authorities and developers whilst also ensuring there is enough demand for off-site BNG to sustain a competitive low-cost local supply of BNG units to developments.
This contrasts dramatically with the Government’s proposal that exemptions should actually be expanded. Not only would this lead to the accelerated destruction of habitats without adequate compensation for those harms, and be bad for England’s flagship biodiversity policy, but would also carry a high risk of successful legal challenge due to such a decision’s likely failure to honour the Environmental Principles Policy Statement, international law and legally-binding environmental targets.
The Government is also proposing extending use of the Small Sites Metric (SMM) to medium-sized sites, simplifying how and when the SSM is used. We do not agree with this. The SMM should still be applied to smaller sites, but the Statutory Biodiversity Metric (SBM) should continue to be used for anything above this scale. The trading rules should also be retained, since ensuring that habitats of particular ecological value are replaced with equally distinctive habitats is key to the integrity and purpose of BNG policy.
One thing we do agree with in the Government’s proposals is that the mitigation hierarchy should be updated for minor development. Putting on- and off-site BNG delivery on a par for small developments would help developers take an approach that best suits their development, while contributing to bigger, better and more joined-up nature recovery.
A final key consideration in this consultation related to the (often literally) thorny subject of open mosaic habitat (or OMH). We do not agree with the suggestion that it should be possible to allow alternative habitat delivery for the loss of this key habitat. Compensating for the loss of OMH is perfectly possible provided the resources listed in the habitat’s UKHab definition are similarly provided: i.e. >0.25 ha in size; history of disturbance/severely modified; early successional plant communities present; contains unvegetated loose substrate (pools maybe present); and spatial variation is present forming a mosaic. It would be inappropriate to compensate the loss of OMH with an area of alternative habitat, such as grassland or heathland, which alone are unlikely to provide the same wide range of conditions.
It should also be possible to loosen any perceived requirement that compensatory habitat must be recreated on ‘previously developed land’ (i.e. brownfield), as suggested by the full name for this habitat. This would certainly help with the provision of replacement habitat on non-brownfield land, provided the resources and features that define this habitat are created. As more OMH units become available on the open market, this will certainly help the viability of development on brownfield sites with OMH present.
BNG for nationally significant infrastructure projects (NSIPs)
We also had quite a lot to say in the NSIP BNG consultation, although it is fair to say that the proposals here were much less contentious and more in keeping with the wider roll-out of BNG that came into force last year.
Probably our main issue related to the implementation of the mitigation hierarchy, which currently places an emphasis on delivering on-site wherever possible before considering off-site options. This is a concern whatever the scale of the development, as large-scale off-site solutions will almost always be better for nature; hence RSK Wilding’s focus on bespoke, strategic biodiversity offsets (and indeed our tagline: ‘bigger, better, wilder’). This has been evidenced recently in the excellent report on ‘The comparative value of on-site vs off-site Biodiversity Net Gain for restoring nature’.
Given the scale of these NSIP projects, we believe that it would be appropriate to remove the current presumption in favour of on-site BNG delivery, since off-site solutions – especially through bespoke offsetting – will make it easier to achieve the required (large) number of units without compromising the ability of these key development projects to proceed without expensive delays.
This will also facilitate the delivery of landscape-scale habitat creation, fulfilling the Lawton principles of ‘bigger, better, more joined-up’, whilst also delivering properly resilient nature restoration which, thanks to their size, can deliver numerous other environmental and socio-economic benefits, such as water quality improvement in catchments, flood risk mitigation and meaningful recreational access to nature for local communities.
Placing on-site and off-site delivery on an equal footing will make the achievement of BNG for these major schemes more flexible and allow project proponents to deliver their required biodiversity uplift in the most appropriate way for their project. Importantly, they will not feel pressured into delivering on-site if they do not want the burden of 30 years of habitat management within their scheme footprint.
Another key issue for NSIPs, especially long linear schemes like electricity cable routes and pipelines, is that they tend to have large ‘Order Limits’. This means that the amount of land within the red line boundary (upon which the BNG baseline is based) is often extremely large, leading to unreasonable BNG burdens. Even though much of the land that would be affected is of low biodiversity value, and will generally be returned to the landowner post-construction, the sheer fact that so much is included in the RLB tends to make the 10% target BNG disproportionately inflated relative to the value of the habitats.
Amending how the baseline is calculated could reduce the offsetting burden, and there should therefore be flexibility in the Development Consent Order (DCO) process to allow BNG to be based upon how much of the land is truly impacted, once the scheme has been completed. This, combined with relaxing the need to provide on-site BNG delivery (as above), could very much expedite the NSIP process, meaning that these important developments can progress efficiently whilst still making very significant contributions to landscape-scale nature recovery.
With regards to temporary impacts, we think that the two-year timespan currently used to define temporary impacts in the Metric will probably need to be relaxed for NSIPs. This aspect of the Metric calculations basically means that the effects on a habitat do not count as a loss as long as the land can be successfully reinstated and returned to the landowner within two years of the impact. The fact that NSIPs generally take much longer to construct means that the duration of a temporary impact for these larger schemes should probably be changed to five years. Clearly this would only apply to land uses that can readily be reinstated (such as arable fields or modified grassland) and not to more significant habitats.
On the subject of the location of off-site gains for NSIPs (i.e. proximity to the project), it could be that the scale of certain types of NSIPs (e.g. long overhead line or pipeline schemes), means that the spatial risk multiplier could be relaxed. For example, given that these schemes often span more than one LPA area, perhaps any offsetting could be required to be delivered in the ‘region’ (e.g. East Anglia, the West Midlands, etc.), rather than the county.
Finally, with regard to the Government’s impact assessment on implementing BNG for NSIPs, we believe that in addition to assessing the potential cost to developers and other potential negative aspects, this assessment should also consider the positive effect that mandatory BNG for NSIPs is likely to have for the developing BNG offset market. Given the risks to this market posed by the proposed Planning and Infrastructure Bill, it is likely that BNG for NSIPs will be crucial for protecting what is already an internationally-renowned and highly-regarded means of securing benefits for nature through development (i.e. the principle underpinning Biodiversity Net Gain).
Helping establish and develop this market will not only be critical for avoiding biodiversity-related delays to major infrastructure projects going forward, but it will also be essential if the Government is to meet its 30 by 30 nature restoration objective.
The outcomes of both consultations should hopefully be published later in the year.