Whilst biodiversity net gain has been gaining traction in the planning system for some time on a policy footing, the Environment Act 2021 introduces a statutory requirement for biodiversity net gain to be achieved on new developments.
The Environment Act provides that planning permissions in England must be granted subject to a pre-commencement condition that development cannot begin until the developer has a biodiversity gain plan containing the relevant information and showing that the biodiversity gain objective will be achieved. It is likely that both planning conditions and planning obligations may be required in order to secure the biodiversity gain objective.
The Government has recently been consulting on how the biodiversity gain objective should work in practice, ahead of anticipated secondary legislation that will bring the biodiversity net gain aspects of the Environment Act into force.
How we can help
We have a team of biodiversity net gain specialists, comprising planning, environmental and development lawyers who have been tracking the progress of the Environment Act, responding to the consultation on biodiversity net gain, and anticipating the information that can be expected from forthcoming secondary legislation and guidance. We are already advising local planning authorities, developers and biodiversity consultancy services on biodiversity net gain offsetting schemes, both to meet current planning policy requirements, and to prepare for anticipated secondary legislation which will make biodiversity mandatory across England.
We can assist with:
- Advice on preparing for mandatory biodiversity net gain requirements under the Environment Act 2021, including keeping up to date with when these will come into force.
- The legal structures and contractual documentation needed to establish biodiversity offsetting "land banks" that can be recognised by local planning authorities as being a source of biodiversity credits for developments that need to offsite the biodiversity gain objective;
- The role of section 106 agreements and conservation covenants in securing biodiversity net gain.
- Legal agreements needed to underpin biodiversity units.
- The role of the biodiversity unit register and legal agreements underpinning biodiversity units.
- Advising on secondary legislation and guidance when it comes into force.
- Specific advice for developers, landowners and local authorities.
- The interaction of biodiversity net gain with existing policy and other environmental offsetting regimes.
- Advising on how biodiversity net gain can be dealt with contractually and through the planning regime in the context of complex multi-phased developments where there may be multiple developers involved.