Mark Howard
Posted on 9 Aug 2019

The Environment Bill: Developers to be responsible for achieving 10% Net Gain in Biodiversity

In July 2019 the government released their response to the public consultation on the biodiversity net gain provisions to be included in the forthcoming Environment Bill.

The Bill has been hailed as "world-leading" by Michael Gove and upon review of the proposed provisions, it is easy to see why.

To provide a flavour of the contents, there is to be an "Extended Producer Responsibility" scheme to ensure producers take responsibility and compensate for the waste they produce. Producers must also improve the labelling on packaging to aid recycling. Consumers will further be encouraged to recycle by participating in a "deposit return scheme" which allows individuals to reclaim their deposit when recycling disposable water bottles. The Bill directs that water companies must collaborate to mitigate against water shortages and become more environmentally friendly. Failure by companies to abide by the new regulations could lead to a referral to the new environmental watchdog, the Office for Environmental Protection. This office will be able to undertake investigations into government and public bodies for failing to follow environmental law.

To return to the recently released government response, the Bill will also impose new requirements for developers to deliver an overall 10% net gain in biodiversity on the land being developed which must be maintained for a minimum of 30 years. The 10% net gain can be obtained either through the enhancement of existing biodiversity, or through the creation of new habitats on a "like for like" basis.  This will usually take place on the development site itself, however, if not possible, the developer will be required to enhance or create a biodiverse site which has been identified on a publically accessible register.

To determine the 10% net gain requirement, biodiversity will be quantified through measurable "Biodiversity Units" which will be calculated using the DEFRA Biodiversity Metric. Different habitats will be assessed using factors such as distinctiveness, condition, connectivity, strategic significance and size, resulting in an assigned amount of biodiversity units. The higher the amount of biodiversity units, the more biodiverse the site is.

There are some (admittedly few) exceptions to the 10% net gain requirement, including sites which do not contain habitats pre-development (but these will be required to incorporate green space) and brownfield sites which face genuine difficulties in delivering a viable development. Nationally significant infrastructure and marine developments are also currently excluded, due to the biodiversity metric not being advanced enough to fully assess these areas.

In recognition of the tight budgets of small developers, developments of less than 10 residential units or sites covering an area of less than 0.5 hectares will be permitted to follow a simplified biodiversity surveying process. The government have not yet released specific details on this.

The government are also promising training to local planning authorities for the systems required for calculating net gain, to enable them to cope with these additional requirements.

It will be interesting to see whether the Environment Act, that is given Royal Assent, manages to maintain the breadth of environmental protection and substance contained within the draft Bill.