4 minute read
Sigma Strategic Land (SSL) is delighted to be in conversation today with Kevin Scott, a Chartered Town Planner at Solve Planning based in Fleet, Hampshire.
Kevin has a broad range of expertise with a particular focus on residential schemes including providing strategic land advice. Solve Planning is now in its thirteenth year and also helps clients with commercial, education, urban regeneration and conservation matters.
Biodiversity Net Gain is a concept that is gaining increasing traction when considering developing a site and carries significant implications for major residential schemes.
Kevin took the time to sit down with SSL’s Strategic Planning Manager Damian Sullivan to talk more about Biodiversity Net Gain.
1) To begin with Kevin, Sigma Strategic Land (SSL) is increasingly encountering the concept known as Biodiversity Net Gain (BNG). What is your understanding of the term?
For me, it is about leaving a site in a better position in terms of biodiversity after development than before it. That’s the general principle, but the betterment will not necessarily be on-site as it can also be provided off-site and through the purchase of credits for more indirect improvements not connected to the site or project. Albeit that the hierarchy seeks on-site provision as the priority with credits being very much the last resort.
BNG will become mandatory through the vehicle of a mandatory pre-commencement condition and this is quite radical. Up until now, the only conditions that have been on a Decision Notice relate to time limits. Everything else is based on the specifics of the application and its local context. But with BNG now being included and non-negotiable, it certainly shows the importance of the concept – I can’t think of another issue in my time in planning that has resulted in such an absolute position. This will have significant implications which we can touch on later.
2) Briefly taking BNG back to its roots. The Government’s ’25 Year Environment Plan’ (2018) set out a policy ambition to consult on mandatory BNG for development and to embed an environmental net gain principle into the planning system. This was followed by a Defra consultation on mandatory BNG, advocating a minimum of 10% BNG for all development which took place in December 2018. The Environment Bill now states a minimum of 10% BNG for all development. Yet even before this Bill was legislated, Local Planning Authorities appeared to quickly embrace BNG, some even writing it into their Local Plans. What does this suggest to you about how Local Authorities have been reacting to BNG and where does it leave SME developers like SSL?
Biodiversity Net Gain is already here and up and running. There is a 2 year transition period, but to me, this is more about a lead in time to resolve details about how to deal with off-site mitigation and credits, as well as the mechanics of it such as establishing a biodiversity site register.
It is certainly the case that Councils are already seeking BNG. We have also seen Local Plans requiring it. Take the case of the Royal Borough of Windsor and Maidenhead for example. Their Local Plan was adopted recently on the basis of policies drawn up well in advance of the November Act, yet it still requires net gain using recognised metrics.
If we are being realistic, many projects will run until the end of the transition period in April 2023 and will need to be planned accordingly. Certainly, most strategic projects should work on the basis that the mandatory requirement will be in place by the time a permission is granted.
It is my view that no one can afford to ignore this and a BNG strategy needs to be part of most new projects from now on. If nothing else, developers and promoters need to know to what extent they are likely to be relying on the off-site mitigation and how this will be secured. They will, after all, have to deal with it through the pre-commencement condition. This is very different to matters such as affordable housing which are part of the section 106 process at outline or full permission stage, or CIL (The Community Infrastructure Levy) payments which can be calculated in advance.
3) How do you see the tension being reconciled between delivering BNG and meeting the Government’s ambition to deliver 300,000 homes per annum by the mid 2020s?
I think there is a whole other discussion to be had about how determined the Government will be on sticking to this target in any event given some of the noises from Government, combined with the number of Councils abandoning Local Plans in the hope that lower targets will be set.
Putting that to one side though, so much will depend on what progress is made on the off-site mitigation and credit system ahead of April 2023. We know the requirement will be mandatory by then, but will these mitigation options be fully operational and effective? If not, then there will be delays.
Another important question is whether Local Authorities will be resisting off-site mitigation and pushing for on-site where it is not feasible do so? The quality of the biodiversity gain information submitted with an application will be so important in order for these informed decisions to be made.
I suspect the uncertainty of the interim period where we are all seeking solutions ahead of the system being fully operational will also cause delays.
4) SSL notes that in many cases, 10% BNG is generally accepted by Local Authorities as being acceptable and yet in the absence of a specific policy, it can be strictly any improvement in BNG terms which actually means greater than 1%. Have you had any experiences of this variance and do you think there should be greater flexibility going forward, depending upon the circumstances of the site?
The Government’s ongoing consultation published in January shows they have looked at flexibility, but have since moved away from this. Even for minor development they seem to be limiting flexibility to a simpler metric and possibly a longer transition period but still maintaining 10%.
I can see most Councils pushing for 10%, particularly where they are proactive on climate matters. As we have said, 2 years is not long in the lifetime of strategic projects and the potential for a lower target will diminish as we get closer to the date.
5) BNG appears to be here to stay. Even though widely consulted, do you think that there could be a better way of securing BNG? For example, could SANG land or specific pooled landbanks dedicated to ecological enhancements be created in a District or region, similar to the approach taken with nitrate neutrality where woodland is created, rather than seek improvements on a developable site?
In my opinion, the Government is relying on the market to provide a substantial part of the off-site mitigation strategy. They consider the market to be worth £135m and looking at 6200 bio diversity units per annum. This will be a lot less localised than SANG for example, which is tied much more closely to the sites which can benefit from this. The Consultation acknowledges that this will need to be applied flexibly in order to avoid local shortages and delays to delivery. It also advocates habitat banking so off-site mitigation can be drawn down from a pre-established pool.
6) In the case of a site that does not have much in the way of environmental sensitivity, do you think that BNG should take up valuable net developable area, leading to resultant pressure on finding the next development site where environmental conditions are less favourable? SSL welcomes your thoughts on greater holistic thinking in regard to securing environmental benefits across a sub-region or region?
So much of this will depend on how quickly off-site mitigation and credits become established. I suspect full provision for 10% will be challenging on many sites. On larger potential allocations you may be able to look at providing on-site mitigation, but that will take careful negotiation to convince landowners when discussing net developable areas.
However, I would be worried about walking away from good sites due to this issue. I would encourage looking at strategies for mitigation early on to see if they can be unlocked, particularly while we are waiting for it to bed down.
It is also important to cost for off-site provision where necessary when looking at new sites. Ultimately this will become easier as the scheme settles in and it becomes a regular development cost in the same way that we now deal with affordable housing and SANG etc.
7) Do you think the Environment Bill will secure greater ecological enhancements for sites and how does this mesh in with other ongoing environmental issues such as nitrate and phosphate neutrality?
The Environment Bill can certainly lead to greater ecological enhancements, but I see the direct links to the site being weakened with the nature of off-site mitigation and credits. I would also see it as another hurdle to overcome. Nitrate and phosphate neutrality policies are another version of mitigation, whereas we are looking at betterment and net gain here.
There may be some overlap between the two and the consultation document seems to give some comfort that where you are doing something to fulfil another statutory obligation, this can count if a net gain can be calculated using the metric where it is provided for on-site.
8) Environmental directives and case law often affect planning and particularly in the delivery of residential development. How can Solve Planning help advise clients during these times of uncertainty?
I think the key is to devise a strategy with the client at an early stage. We will look to work with the project ecologists to understand what can be done on site and what potential might there be for off-site projects whilst the system becomes established.
9) As a planning consultant who regularly encounters the Biodiversity Metric (Natural England released its Version 3.0 in 2021) and its user guide, how easy do you find following the calculations and the application of relative biodiversity value for a site in real terms? Could it be improved in any way, particularly in respect to calculating Biodiversity Units (BU) for a specific development site?
In my view, this task needs to sit with the project ecologist. I would be wary about completing this as a Planner. This will feed directly into the net gain plan and it has to be based on firm foundations and expert knowledge in my view.
10) So in conclusion, how do you view BNG and the opportunities it might create for development?
If you are a landowner with a site with little prospect of housing development, then it is important to consider whether you can be part of the market for off-site mitigation. The land will need to be safeguarded for at least 30 years, but it might still be easier than trying to get planning permission for housing. Otherwise, it becomes another constraint to development where the important thing is to understand how the site can be unlocked. For example, does the landowner have other land which might be used? Could this involve a relatively small change for maximum benefit? We are working on one project where a change to the grazing regime in one field can offer significant benefit.
It is also important to accept that it is here and make it part of your development strategy from the outset in most instances.
As we get nearer to the April 2023 date, then we need to give careful consideration to frontloading this information into planning applications. Clearly, there are difficulties in leaving too much to the pre-commencement condition requiring the biodiversity gain plan.
The consultation document requires biodiversity gain information with the application rather than the Plan required by the mandatory condition. I would be looking for this to be frontloaded so it is the Plan in all but name so it is ready to submit the day after the Decision Notice is issued!
My feeling is that developers will need this to be as advanced as possible before permission is issued, potentially triggering conditional contracts and options particularly given the potential reliance on third party land for off-site mitigation.
Given the difficulties and delays in discharging conditions generally the fact that the ‘sign off’ is post-decision (and probably post-acquisition) could be quite challenging.
Thank you, Kevin. SSL very much appreciates your time and commitment to taking part in this very informative Q&A on a difficult subject.
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