At the end of February 2024, RSK Wilding, as part of RSK Biocensus, was awarded ‘responsible body’ status by Defra, giving it the role of regulating, or overseeing, ecological restoration projects across England.
This is a key landmark for us and demonstrates how committed we are to biodiversity net gain (BNG) and, specifically, to making it work. Being a responsible body will allow us to draft up ‘conservation covenants’ with landowners or other BNG providers to deliver habitat creation and enhancement. These legal agreements will give us monitoring duties, as well as the power of enforcement, to ensure that the habitat improvements being committed to are effectively implemented.
But why are we doing it?
Ultimately, we want to play our part in ensuring that the huge opportunity presented by BNG is not squandered. As has been seen with the carbon offsetting market, and in a number of other areas where greenwashing – the act of over-claiming the environmental benefits of an action – has thrived, there is always a risk that a good idea can be appropriated by those seeking to make a fast buck. Given the potential contribution that BNG could make to not only nature recovery but also climate mitigation and environmental restoration more broadly if it is well implemented, it is crucial that we get it right.
Through our work over recent months with various local authorities, it became clear that many were reluctant to become responsible bodies, given how new the legislation and biodiversity credit markets are, or simply did not have the resources to take on the role, or both. There was also concern that there might be a conflict of interest, given that many authorities are establishing habitat banks on their own land (countryside parks, model farms, etc.) and would not be able to create a covenant agreement with themselves in these circumstances.
From the private sector perspective – and the government made it clear quite early on that private organisations could become responsible bodies, as long as certain criteria were met – while the most obvious potential adopters, ecological consultancies, will have the technical skills required to ensure that BNG schemes are fit for purpose, they generally do not have the legal expertise in-house to draft up contractual agreements or to follow through on other aspects of the role, such as mediation. Perhaps most importantly, many have been reluctant, much like the local authorities, to take on the liabilities and responsibilities around enforcement.
While local authorities do have enforcement powers (generally applied via Section 106 agreements), this has long been a bone of contention, since the cost implications, risks and lack of resources can make the execution of these powers impractical.
We will certainly carry out enforcement if it comes to that, but we think that most organisations engaging with us as a responsible body will be doing so with a genuine desire to deliver ecological uplift and that a more collaborative approach will be more productive and appropriate. Key to this approach will be a shared understanding of the fundamental aims of the BNG proposals (or equivalent), how these will be measured and at what point the plans would be deemed to be failing.
The companion document to the government’s Habitat Management and Monitoring Plan (HMMP) template will likely be key in this, as it very helpfully details, habitat by habitat, what success will look like (in terms of species assemblages, structural components, etc.). Ultimately, our hope is that most organisations that we partner with will understand that enforcement and litigation are to be avoided, if at all possible, not least because they will likely end up being more expensive (in terms of both money and reputation) than implementing the proposed remedial measures in the first place.
The bottom line is that, by signing a conservation covenant, a landowner or habitat bank is committing to delivering an agreed and quantifiable uplift in biodiversity, and it is our job to make sure this is realised. While we, as a responsible body, will be understanding of difficulties that might arise – for example, in relation to events beyond the landowner’s control, such as upstream pollution events, wildfires and other ‘force majeure’ – and will certainly be flexible rather than draconian, we nevertheless have a responsibility to ensure success. Essentially, by signing up to deliver habitat restoration (and in most cases benefitting from it commercially), a landowner is also taking on a degree of risk; it’s not always easy to create habitat, and things can go wrong. The financial implications of this risk should be built into all cost models for BNG delivery, which again is something that we would be checking through our due diligence.
We hope that we will never have to resort to enforcement and/or litigation and that we can agree a process (to be set out in the conservation covenant) that encourages a reasonable and grown-up approach to conflict resolution in order to achieve the right outcomes. But, ultimately, we take our responsibility very seriously and will do all we can to ensure that BNG is the game-changing legislation that so many of us want it to be.