Developers advised to prepare for Green Brexit
19th December, 2019
After a decisive win in last week’s general election, Prime Minister Boris Johnson will now push on with his plans to ‘get Brexit done’ but it’s the Government’s proposed ‘Green Brexit’ which Ward Hadaway’s planning team is advising developers to start preparing for.
Although the Environment Bill is still a while off becoming law, developers up and down the country should already be thinking about the implications the proposed mandatory Biodiversity Net Gain (BNG) of 10% will have on future developments.
That’s the advice given to clients of Ward Hadaway after the Government announced plans that it will make BNG mandatory for every site and currently, every type of planning permission to incentivise the enhancement of habitats on site or locally.
Although the proposals require a 10% BNG, the Government has talked about introducing some exemptions for permitted developments and householder applications as well as an exemption for certain brownfield and small sites, but those exemptions will be included in the secondary legislation that is not yet available. The Government has been clear that BNG will not apply in the same way to nationally significant infrastructure projects although other proposals for net gain are being explored.
Long-term protection of habitats is encouraged as any works a developer proposes to undertake to increase the biodiversity value may only be taken into account if maintenance for a minimum of 30 years has been secured. If 10% BNG can’t be achieved by on-site improvements, there are opportunities for off-site improvements through financial contributions in a section 106 Agreement or the purchasing of ‘biodiversity credits.’
As is currently the position, changes to biodiversity are to be measured by The Defra Biodiversity Metric which considers habitat type, condition and size of habitat, strategic significance and connectivity and is translated by the metric into a number of biodiversity units. Interpretation of the updated Biodiversity Metric is likely to require the involvement of a specialist ecologist.
For most, the concept of BNG will not be new, however its application has generally been confined to sites with high biodiversity value. The revised approach may be seen by developers and landowners as another constraint to development and there may be concerns within the industry that these plans may further delay the start of projects on site.
The implications for developers are more so for those sites with marginal viability while the impact for landowners may be greater as they are likely to receive a diminished land value due to increased planning/section 106 costs.
There are also resource implications for local planning authorities as Section 88 and schedule 15 of the draft Bill states that ‘development may not begin unless’, the developer has submitted a biodiversity gain plan and the local planning authority has approved the plan.
Ward Hadaway’s Built Environment team, said: “There is expected to be a two-year transition period before the mandatory BNG comes into effect but we are already advising our developer clients to start factoring in the potential impact and costs of the biodiversity net gain moving forward, particularly where long term options are being negotiated.
“Consultation earlier this year also stated that although 10% will be mandatory, the Government encourages developers to voluntarily, wherever possible, go further to meet the needs of local planning policies.
“Like Brexit, there is a still a lot of uncertainty and until more legislation is available, we are unsure exactly how this will unfold but developers, landowners and local authorities can’t ignore these proposals.”
For more information on Biodiversity Net Gain, please contact the planning team at Ward Hadaway on 0330 137 3000.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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