Schedule 15: Biodiversity gain in nationally significant infrastructure projects
- Lords Amendment 93 would introduce a new schedule that sets out the biodiversity net gain requirement for Nationally Significant Infrastructure Projects (NSIPs).
- Paragraphs 1 to 4 amend sections 104 and 105 of the Planning Act 2008. Section 104 of the Planning Act relates to those NSIPs for which a national policy statement has effect, and section 105 relates to those for which a national policy statement does not have effect.
- For all NSIP applications decided under section 104, paragraph 3 requires the Secretary of State (SoS) to be satisfied that the biodiversity gain objective contained in any NSIP’s statement is met, in order for consent to be granted.
- Paragraph 4 requires, for applications decided under section 105, the SoS to be similarly satisfied that the biodiversity gain objective set out in a biodiversity gain statement is met before granting an application.
- Paragraph 5 inserts Schedule 2A into the Planning Act 2008. Schedule 2A Section 103: Biodiversity Gain, paragraph 1 outlines that this amendment would only apply to NSIPs that are in England and are not ‘excluded developments’, which are to be defined by regulations made by the SoS.
- Paragraph 2 outlines how the biodiversity gain objective is to be set for NSIPs. It states that this is to be done through a ‘biodiversity gain statement’. These policy statements will define the biodiversity gain objective and prescribe the processes through which biodiversity gains may be calculated, demonstrated and verified.
- Paragraph 3 defines a biodiversity gain objective as an objective that development increases its attributed biodiversity value relative to the on-site habitat value before development. This increase must be at least 10%, though the SoS may amend this percentage temporarily or indefinitely by regulations.
- Paragraph 4 says that a biodiversity gain statement may stipulate the method of calculating biodiversity value and specified that options include the metric published for development under the Town and Country Planning Act, a bespoke biodiversity metric or another biodiversity metric. The stipulated biodiversity metric must be published in an appropriate manner and, unless already laid before parliament in accordance with Town and Country Planning Act biodiversity gain provisions, must be laid before parliament.
- Paragraph 5 says that a biodiversity gain statement may set out how the on-site habitat is defined and the date (for example, before any habitat clearance for development commences) for which a habitat’s value must be assessed.
- Sub-paragraph 5(2) allows for a different pre-development date to be specified if activities on the land before making the development consent order application has resulted in a reduction in the biodiversity value of the on-site habitat (for example, where habitats have been degraded prior to development consent).
- Sub-paragraph 5(3) states that the projected biodiversity value of a registered biodiversity gain site should be taken as the pre-development biodiversity value where development takes place on an existing biodiversity gain site.
- Paragraph 6 says that a biodiversity gain statement may specify what the biodiversity value for the relevant development consists of and how biodiversity value, when secured for an appropriate duration, may be allocated to a development. This could include the post-development biodiversity value of the on-site habitat, the biodiversity value of any off-site biodiversity gain allocated to the development and the biodiversity value of any biodiversity credits purchased for the development. An increase in biodiversity value either on-site or off-site can only be taken into account if any habitat enhancement contributing to that biodiversity value increase is maintained for a period specified in the statement, and if the maintenance of that habitat enhancement is secured in a way specified in the statement.
- Paragraph 7 relates to development on irreplaceable habitats. In recognition of the position set out in paragraph 1682 of these explanatory notes for the Environment Act, a biodiversity gain statement may disapply the biodiversity gain objective, or components of the objective for such development. It may also set requirements to minimise any adverse effects of the development on irreplaceable habitats.
- Paragraph 8 states that the biodiversity gain statement must set out the evidence, likely to be specified in terms of documents types including a completed biodiversity metric, that must be provided for the biodiversity objective to be deemed met.
- For developments where there are existing national policy statements, paragraph 9 says that, following commencement of the schedule, the SoS must amend the statement when it is next reviewed so as to include a biodiversity gain statement. In the time between the schedule being commenced and a review of a national policy statement, a separate ‘biodiversity gain statement’ may be issued which would have the same effect as a statement integrated within a national policy statement. This must be laid before Parliament and be published in a manner deemed appropriate by the Secretary of State. This separate biodiversity gain statement would then be revoked when the national policy statement is reviewed and the biodiversity gain content is integrated into the nationally policy statement. If an existing national policy statement relating to a development is withdrawn, any separate biodiversity gain statement relating to that development would come into effect.
- Paragraph 10 states that a biodiversity gain statement may be produced for development which is not covered by a national policy statement. This would also be subject to requirements for consultation, laying before parliament and publication in an appropriate manner. This biodiversity gain statement would then be incorporated into any later national policy statement published for that type of development.
- Paragraph 11 gives powers to the SoS to apply, with or without modifications, this schedule to developments at sea within England.
- Part 2 sets out supporting amendments to the Planning Act 2008 which enable mechanisms such as requirements (similar to conditions applied to Town and Country Planning Act permissions) and document requirements to be set or adapted in relation to the biodiversity gain objective.
