Image: female surveyor with iPad and rucksack standing in forest.
1. How would you create a model that produces zero risk from judicial review?
If local planning authorities (LPAs) set up their own sites that are not separate from the authorities’ planning functions, then there is a significant risk of legal challenge to a planning decision. This risk is negated, however, if LPAs require developers to use Habitat Banks outside the LPAs control. It keeps the LPA’s regulatory function in the planning system separate from the delivery of biodiversity net gain (BNG).
We can help you take the delivery risk away with our network of Habitat Banks. The planning permission decision is independent of any benefit to the LPA and that’s how it should be.
2. Can a site that is already rich in habitats qualify as a Habitat Bank? Is it sufficient to simply maintain a site’s condition or must it experience some kind of enhancement? What about sites that achieve natural increases in condition year-on-year with minimal management, such as woodland and where 30 years is relatively short?
The site must be enhanced. It is not sufficient merely to draw a line around a site of some ecological significance and call it ‘protected’. If the finances are to add up, the habitat must be restored and as much ‘green’ as possible must be generated from the sites (more credits per hectare).
This is not a job for the steep parts of the boundary. Delivering nature recovery at the site level is the aim here, rather than at protecting something that is already in good condition (which should be sufficient reason for securing it through the planning system).
3. Is it permissible for a local planning authority to require that the biodiversity net gain only occurs within its geographic area as a condition of granting consent?
We do not believe that the LPA can assert that it has to be within their exact geographic area, because some local authority areas have very limited opportunities to provide an off-site area. The metric addresses this by increasing the credit requirement for off-site areas that are at a somewhat greater distance from the development impact.
4. What is the proposed way to establish a legal framework that ensures the delivery of sites?
A significant investment by has gone into creating:
- a) the Habitat Bank Agreement, which includes the Habitat Management Plan, and for which the landowner is a signatory; and
- b) the BNG Credit Purchase Agreement, which is signed by the developer, and in which evidence is provided to discharge the S106 agreement with the LPA.
Image: male surveyor checking plant against tree and wearing a hard hat.
5. Does moving most or all of BNG offsite risk creating ‘ecological deserts’ in and around developments which might disconnect people even further from nature? Do Habitat Banks merely enable developers to intensify these issues by extracting the utmost ‘quantity’ of development while transferring the biodiversity concern to another party?
Developers will always need to sell houses and so excellent landscaping and planting (placemaking) really is important, but that is not biodiversity and there is now quite a bit of evidence to say that on-site delivery of “Biodiversity Net Gain” (as required by law in England) has minimal value to actual biodiversity.
They are always going to be small, often poorly located, “fragments” of habitat (think woodland scrub and tall grassland mosaics). When these options have been tried, resident’s associations usually have them back to some sort of amenity grassland. “On-site” BNG does not necessarily follow the Lawton principles of “bigger,” “better,” and joined.
Commercial warehouses and logistics parks can have very limited space for BNG. Even with all that wonderful landscaping (which would be impossible without the purchase of lots of adjacent land), a commercial logistics park is not the sort of place where one might expect to encounter beavers, golden eagles, or great crested newts.
6. What is the most effective way to manage onsite BNG over a 30-year period? Management companies and community trusts could be ineffective in this role. What evidence is there to support this assertion?
There is no reason on-site can not be delivered as long as a) a robust, effective management plan is in place, b) the developer has set aside 30 years of funding for on-site BNG, and c) the developer also funds 30 years of on-site monitoring and reporting.
There would also need to be in place a mechanism and funding to intervene in on-site BNG areas if the habitat is not performing in accordance with the objectives of the management plan that underpins the efficacy of the BNG plan and on which the development was permitted.
If all of these things are in place, there is every reason to be confident that the BNG on-site will be delivered. However, in our experience and that of the ecological community and recent research, this does not always happen.
7. Will the Habitat Bank sites need to submit a planning application to change their use, like SANG sites must?
Possibly, but only for wetlands. All the other habitat types demand farming of some kind: cattle or sheep grazing, woodland management, and hay-cropping, so they’re all within the agricultural domain.
8. Isn’t this side-stepping the objective of the Environment Act 2021 and the needed mitigation hierarchy that demands onsite interventions first? Shouldn’t offsite interventions be the last resort?
No it is not side-stepping. Off-site is said to be the last resort, but current thought has moved to a position where the best delivery will be off-site, as on-site usually fails.
There has been a reference to “people need nature”, health and well-being, and greenspace provision. BNG is about protecting, enhancing, and restoring biodiversity.
9. How is the number of available credits determined per Habitat Bank?
The DEFRA 3.1 metric is used to figure out how many biodiversity units were present on the land parcel before a Habitat Bank was established. It is then applied again after a plan of habitat creation has rendered the parcel fully functional with a range of different habitat types. The difference in the two measurements is the uplift in units. This uplift is what allows the Habitat Bank to sell biodiversity credits. How much of this “uplift” in units you can claim depends on two things: the starting position and what kind of habitats you’re creating.
10. Are off-site purchases of units restricted by geographical location? In other words, would a developer have to purchase units in a Habitat Bank within the same local planning authority as their development?
Generally, yes. However, if a site is not available—for instance, many London boroughs are constrained in terms of land availability—then the metric allows for credits to be purchased from farther afield. In practice, it is highly likely that credits will be buyable within 25 kilometers of the site of a development, and largely closer than this, as the market for provision increases.
11. What procedures will be in place to ensure that developers do not clear a site of its biodiversity before a survey is conducted? Wouldn’t such a downgrade in biodiversity enable smaller uplift?
Changes are evaluated against a baseline established in January 2020. If a developer was advised by a consultant to clear a site before an EIA was done, the consultant could be found guilty of professional misconduct. The consultant would not be the only one in trouble; the developer would likely face significant fines as well.
12. If the BNG fails over the 30 years, who is held responsible? Moreover, what does this do to the planning permission?
For Habitat Banks, they accepts the obligation to perform. The developer discharges that obligation once the credits are purchased. With on-site provision, it will be a requirement that the developer provides a fund for the 30 years of independent management of that provision.
