Schedule 14: Biodiversity gain as condition of planning permission
Part 1: Biodiversity gain condition
- Paragraph 1 inserts new section 90A into the Town and Country Planning Act 1990, which gives effect to new Schedule 7A.
- Paragraph 2 inserts new Schedule 7A.
New Schedule 7A Biodiversity gain in England
Part 1: Overview and interpretation
- Paragraph 1 of Schedule 7A gives effect to paragraphs 2 to 11, which set out details of a new general condition to all planning permissions granted in England, subject to exceptions. The condition requires a biodiversity gain plan to be submitted and approved by the planning authority before development can lawfully commence. The biodiversity gain plan should contain an assessment of the value of natural habitats before development and after development, and ensure that at least a 10% net gain is achieved between the earlier and later values. The Town and Country Planning Act 1990 already allows for planning permission to be granted subject to condition(s). This "general condition" for biodiversity gain, which is mandatory for all planning permissions, is novel. Because the condition is deemed to have been granted, it exists in statute prior to the grant of planning permission. It may therefore be met at the time of granting planning permission where the planning authority also approves a biodiversity gain plan, meaning that the biodiversity net gain plan may not need to be submitted and approved in a separate process after planning permission has been granted. This could be used for straightforward planning applications where the relevant information is available upfront. The general condition will not apply to all development in all scenarios. Part 1 includes a power to detail these exceptions in secondary legislation.
- Paragraph 2 sets out the biodiversity gain objective and how it must be met. The objective is that the biodiversity value, expressed in biodiversity units, attributable to the development exceeds that which existed before development by at least 10%. Sub-paragraph (4) gives the Secretary of State a power to vary the percentage gain required.
- Paragraph 3 identifies the biodiversity metric as the approach which will be used to calculate the relative biodiversity value of any habitat. The metric uses habitats as a proxy for biodiversity value, which it measures and expresses in terms of "biodiversity units".
- Paragraph 4 makes provision for the Secretary of State to publish the biodiversity metric, the tool which is used to measure the relative biodiversity value of habitats as relevant to this schedule. Sub-paragraphs (3) and (5) give the Secretary of State the power to update the biodiversity metric, and set out any arrangements for transition when the metric is updated so that developers and planning authorities are clear what is required where, for example, a planning application is under consideration on the date the updated version of the metric comes into effect. Updates to the metric will allow technical improvements, reflecting improved ecological understanding and further evaluation of the metric’s application in practice, to the metric to be incorporated into the approach. Updates will be infrequent to avoid creating unnecessary uncertainty for the planning system. The intention is to publish a timeline of planned updates. The provision also enables the Secretary of State to make transitional provision where the metric is revised and republished. Sub-paragraph (6) requires the biodiversity metric published for mandatory biodiversity net gain, which will be used for measuring the biodiversity value of land and enhancements, to be laid before Parliament. This will ensure that the document is clearly published and is available for scrutiny.
- Paragraph 5 defines the date on which the pre-development biodiversity value of land should be taken to be measured. Sub-paragraph (3) enables a developer and a local planning authority to agree another date where more appropriate than the default set out in sub-paragraph (2). Sub-paragraph (4) makes provision for circumstances in which the planning authority is aware that there has been degradation of habitats in advance of development.
- Paragraph 6 sets out that the pre-development biodiversity value of on-site habitats is to be taken as the value before certain activities took place. These activities must have been carried out without planning permission, or without an alternative permission specified by the Secretary of State in regulations, on or after 15 October 2019. The activities must also have reduced the biodiversity value of habitats on the site below what it would otherwise have been at the time of planning application or planning permission.
- Paragraph 7 defines the pre-development biodiversity value in the event that a site registered as a "biodiversity gain site" is developed. It sets out that the pre-development value of the land should be taken to be the enhanced value of the registered site, regardless of whether or not the registered biodiversity enhancement has in fact been delivered successfully. This will mean that the development of a registered compensation site, whilst unlikely and undesirable, should not undermine the overall biodiversity gain outcome.
- Paragraph 8 defines the post-development biodiversity value of habitat on the development site as the projected value of habitats on the development site. The value needs to be projected because a planning authority will need to use this figure before development starts to determine whether the development will achieve the net gain objective. In practice, the post-development biodiversity value of habitats on the development site will be determined by applying the metric to the developer’s plan for the development site as detailed in the biodiversity gain plan.
- Paragraph 9 stipulates that significant increases in onsite biodiversity value can only be considered part of the post-development biodiversity value if they are secured through a suitable mechanism and will be maintained for at least 30 years after the completion of development. This paragraph also allows the Secretary of State to change the minimum time for which biodiversity gains must be secured. This minimum time applies to on-site biodiversity value increases which are considered significant and therefore secured (through a planning obligation, conservation covenant or planning condition). This may not be changed to a period of less than 30 years, which is the initial duration specified in the Act’s provisions.
- Paragraph 10 defines what can be counted towards "registered offsite biodiversity gain" in relation to a development. This relates to gain achieved on land other than the development site. Where a developer makes an agreement with a third party to do so, or enters into an agreement to do so themselves, this gain can be allocated to the development to be counted towards meeting the biodiversity objective. The biodiversity gain and its allocation to a development must be recorded on the biodiversity gains site register.
- Paragraph 11 makes reference to biodiversity credits, as described in section 101 of the current Act.
- Paragraph 12 defines the terms "developer", "onsite habitat" and "planning authority" as they are applied in the new Schedule 7A. Sub-paragraph (2) states that references to planning permission should be taken to include deemed planning permission, which is granted by government departments to certain development. This includes development approved under the Electricity Act 1989 and the Transport and Works Act 1989.
Part 2: Condition of planning permission relating to biodiversity gain
- Paragraph 13 sets out and applies the general condition to all planning permissions granted for development in England, subject to exceptions in paragraphs 17 and 18 and further application beyond the standard definition of planning permission in paragraph 19.
- Paragraph 13 contains the wording of the general condition itself, which requires that a developer wishing to commence a development approved by planning permission will first need to submit a biodiversity gain plan to the planning authority, as defined in paragraph 12, and obtain the planning authority’s approval of this plan.
- Paragraph 14 establishes what information a biodiversity gain plan must include to satisfy the general condition. A biodiversity gain plan must specify all the information necessary for a planning authority to be able to approve the plan under paragraph 15. This includes information about the biodiversity value of habitats before and after development and steps taken to minimise harm to habitats during development.
- The Secretary of State may specify other matters to be included in the plan under sub-paragraph (2)(f). Sub-paragraph (3) provides for the Secretary of State to specify the procedure which must be followed when submitting a gain plan.
- Paragraph 15 requires planning authorities to approve a biodiversity gain plan if, and only if, key information in the biodiversity gain plan is accurate and the biodiversity gain objective is met. Authorities need to be satisfied with the information provided, including the value of onsite and offsite habitat gains and losses associated with the development. If the authority decides they are not satisfied, development would not be able to proceed lawfully unless the developer successfully appeals this decision.
- Paragraph 16 gives the Secretary of State the power to specify procedures to follow and factors to be taken into account when approving a biodiversity gain plan, and in relation to appeals against decisions.
- Paragraph 17 exempts all development granted planning permission by the Secretary of State using a development order, or under provisions for urgent Crown development, from the application of the general condition. This includes development granted permission by the General Permitted Development Order, which allows various types of development to proceed without requiring a planning application. Paragraph 17 also gives the Secretary of State the power to exempt development from the requirement to apply the general condition.
- A net gain in biodiversity cannot be achieved on areas of development which result in the loss of irreplaceable habitat, such as ancient woodland. In recognition of this paragraph 18 allows the Secretary of State to make regulations that modify or exclude the application of the general condition to irreplaceable habitat. Existing strong planning policy protections for irreplaceable habitat will remain, and will not be replaced or in any way undermined by the biodiversity gain requirement or any regulations to be made in relation to irreplaceable habitat. Sub-paragraph (2) specifies that, where development does impact irreplaceable habitats, regulations must require measures to be taken to minimise the negative impacts of this development on those habitats, and that those measures should be agreed with the planning authority where they are not made by the planning authority in the first place. Sub-paragraph (3) allows regulations to confer powers and duties on Natural England in relation to giving guidance on the treatment of irreplaceable habitat in development.
- Whilst it is generally agreed in practice that development cannot claim biodiversity net gain in cases when development results in land take from statutory protected sites (such as Sites of Special Scientific Interest, Special Protection Areas, Special Areas of Conservation, and Ramsar sites), development on such sites is not specifically exempted from the net gain requirement. The biodiversity metric does not address impacts on species, recognise the significance of site designations, or take account of indirect impacts, cumulative impacts or in-combination impacts. In recognition of these limitations, the biodiversity net gain requirement for development on such sites is additional to any existing legal or policy requirements for statutory protected areas and their features, including restoration and conservation of designated features and the achievement of favourable conservation status and favourable condition. These requirements will need to be dealt with separately by the developer and planning authority.
- Paragraph 19 allows the Secretary of State to modify the application of this Part to permissions for phased development or developments where subsequent approval has the effect of phasing development. Sub-paragraph (2) sets out that regulations may include provisions for biodiversity gain conditions to be included in the grant of planning permissions for these types of permission.
- Paragraph 20 gives the Secretary of State powers to modify or exclude the application of this Part to planning permissions for development already carried out, or planning permissions granted for the alteration or removal of buildings or works by any order requiring discontinuance of any use of land.
- Paragraph 21 makes provision for the Secretary of State to make provision as to the application of this Part of the Schedule to planning permission granted in relation to a purchase notice and the successful appeal of a planning enforcement notice.
Part 2: Consequential amendments.
- Paragraph 3 details the consequential amendments to the Town and Country Planning Act 1990.
