THE ENVIRONMENT ACT:
BIODIVERSITY
As the start of November’s Covid-delayed COP26 global climate action conference draws near, developers across England are bracing for the roll out of new legally binding requirements that should protect and enhance the nation’s natural capital and biodiversity. Andy Williams, Head of Geospatial at Carter Jonas, explains the new language that built environment professionals need to understand.
The UK government’s long awaited Environment Bill is expected to receive Royal Assent in the coming months, but not – as hoped – ahead of November’s global COP 26 climate action conference. It should be the catalyst for a welcome transformation in the built environment sector’s appreciation of the nation’s natural capital.
"these new requirements certainly present more than a small, simple task for the overwhelming majority of developers and built environment asset owners"
INFRASTRUCTURE'S VITAL SPOTLIGHT ON
The legislation certainly represents a significant moment of change in the way that developers will be asked to manage their impact on biodiversity going forward. And there is no doubt that the resulting new language and approach to biodiversity will focus the mind of every developer and the impact their actions create today, and in the years to come.
Of course, being able to effectively measure biodiversity sits at the heart of the entire strategy and is central to its success in terms of actually boosting our natural capital, rather than simply increasing cost and workload; to demonstrate that housing developments, industrial sites and NSIPs alike can have a net gain impact on the environment and enhance wildlife habitats.
But will the Bill actually be able to prompt the change as intended? Will we see the desired shift in the way our often-overlooked natural capital is valued and protected in the future? Without careful execution, there is a risk that the legislation could instead simply initiate a new round of expensive, delay-inducing box ticking and report writing.
In short, the Environment Bill will seek the mandatory 10% net gain in biodiversity through attaching a planning condition to the permission. The condition will secure a biodiversity gain plan that demonstrates a measurable 10% uplift across the development and to ensure this is maintained for at least 30 years. This principle is known as biodiversity net gain (BNG) and is already being applied by some local planning authorities.
In its original draft, the Bill would have applied to every project that required planning consent under the Town and Country Planning Act, but it excluded those approved under Permitted Development and those deemed as Nationally Significant Infrastructure Projects (NSIPs), approved by Development
Consent Orders.
However, following an amendment to the legislation in June this year, all developments, large or small, will now be subject to the new requirements. This is a significant and welcome change that puts many larger and potentially highly environmentally disruptive projects under a welcome biodiversity spotlight.
There are still exceptions, of course. Notably the major infrastructure projects that fall outside the typical planning consent boundaries such as the £100bn+ HS2 project. While few would deny that its environmental footprint is particularly large and heavy, all phases of the project are covered by a Hybrid Bill – meaning that, despite being beyond the scope of the Environment Bill, there is still objective scrutiny of its impacts on biodiversity, along with other considerations.
Regardless, these new requirements certainly present more than a small, simple task for the overwhelming majority of developers and built environment asset owners.
And, although the legislation will be phased across England with a two-year ‘transition period’ following the new Environment Bill receiving Royal Assent, it is unquestionable that developers and owners will have to start planning for the new regime today.
Key to its success will be effective definition and measurement to first agree the existing biodiversity. This is a major technical undertaking, requiring specialist and often local knowledge, particularly across large and complex sites, or for projects that potentially impact areas of particular environmental significance.
Once this baseline assessment is complete, the next challenge will be to create a workable plan that identifies and delivers a 10% gain in biodiversity for the development. This will not
be achieved without significant investment
of resources.
Measuring the baseline biodiversity is clearly always going to require some subjectivity, but, using Defra’s Biodiversity Metric 3.0, is based around
four key attributes:
1.
Distinctiveness
Defra's biodiversity metric 3.0
a score based on Defra’s habitat classification
2.
condition
a score based on the condition of those different habitats
3.
STRATEGY SIGNIFICANCE
a score is based on landscape-scale factors
4.
Habitat connectivity
a score is based on the way one habitat impacts its surroundings
The post-development biodiversity is then calculated, taking into account a number of risks associated with the activity, including:
Associated risks
how far the development is from the area in question
1.
Spatial risk
how long it takes for the affected habitats to recover
2.
TEMPORAL risk
how difficult it will be to actually deliver and maintain the planned mitigation
3.
DELIVERY risk
The fact this new Bill will place onerous requirements on developers is certainly a good thing. However, my fear remains around the reality that, for all the good intentions, developers will always find a way to circumnavigate the requirements.
Fortunately, guidance is already becoming available as professional bodies take up the reins to produce helpful report templates designed to guide developers towards achieving and demonstrating the required biodiversity net gain.
For example, the Chartered Institute of Ecology and Environmental Management has joined forces with the Construction Industry Research and Information Association and the Institute of Environmental Management & Assessment to publish a series of guidance documents. These have been assembled over the last five years and cover good practice principles for development, a practical guide
to understanding biodiversity net gain, and a series of case studies to
help developers.
One area of particular concern is around the use of so-called “biodiversity credits,” which will be available for developers to purchase from Defra should it be too difficult or onerous to meet the required 10% net gain either onsite or nearby.
While this planning condition, or “conservation covenant,” is a useful way to guarantee that biodiversity uplift actually makes it beyond the pages of report recommendations, it is vital that the cost of these credits is set high enough to ensure that developers do not simply buy their way out of obligations that could last for 30 years or more.
"we have both an opportunity and an obligation to ensure that developers genuinely see and recognise the value of natural capital"
To me, this gets to the heart of the legislation’s intension. As guardians of the built environment, we have both an opportunity and an obligation to ensure that developers genuinely see and recognise the value of natural capital. Not least, the ability we have to use it, and the biodiversity opportunities that it presents, in enhancing areas to the benefit of owners, users and to the communities
they serve.
Andy Williams is a Partner in the Carter Jonas infrastructures team, and Head of Geospatial. He and his team work on a vast range of projects, including major transport schemes.
carterjonas.co.uk/geospatial-consultants