Legal update


Biodiversity net gain in new development


Oliver Bussell, a partner at CooperBurnett LLP, looks at how biodiversity net gain could affect the development of new care homes


The coming into force of the Environment Act 2021 brought about significant changes in the regulatory landscape for biodiversity in England. The effects that this will have on land development are about to be seen. The likelihood is that they will be far-reaching and developers of land, including care home operators, should take note. It was the government’s 25-year plan on the environment for England in 2018 that first set out how the government will seek to embed a ‘net environmental gain’ principle for development. The aim being to ensure that development delivers measurable environmental improvements, locally and nationally, to enable housing and infrastructure development – but without increasing overall burdens on developers. That may be hard to square with the


considerably more ambitious terms of the Act now in force and it is worth taking a step back to contextualise net gain within the traditional planning system.


Neutrality to net gain Since the birth of development control in England, it is only the measurable negative consequences of development that a developer has had to give any thought to: mitigating harms, not requiring an overall improvement. Developments such as care homes –


which inevitably lead to increased levels of nutrients from waste water – are a topical example; leaving the situation no worse than it was before the development occurred. Irrespective of the causes of high nitrate levels in the land, development control only requires neutrality overall, not an overall improvement. Similarly, other consequences of


development require mitigation but only to November 2023 www.thecarehomeenvironment.com


a ‘net’ standard. So, while care homes have little or no impact on the need for school places, housing development generates a great deal of demand. Greater use of the highway – of hospitals, recreation grounds, play facilities, and libraries – all flow from development. Contributions towards all of these can be required as part of the price of obtaining planning permission. What the development control regime


has never – until now – required, is for development to do more than mitigate. That has changed with the introduction of Schedule 7A of the Town & Country Planning Act, inserted by the Environment Act 2021.


This is the cornerstone of the Act as far as biodiversity net gain is concerned. It proposes that the biodiversity value attributable to any development must exceed the pre-development biodiversity value of the onsite habitat by at least 10 per cent. (And anti avoidance measures impose a baseline calculation to be carried out retrospectively.) It is worth pausing here to emphasise


The legislative changes in many ways just follow the direction of travel


that the requirement is not a 10 per cent contribution towards mitigation, or a 10 per cent mitigation – it requires that the biodiversity value of a site which has been developed will be 10 per cent higher post- development than it was pre-development. That is a very challenging requirement for built development of any scale.


Enforcing the ten per cent Enabling this, the legislation has existed since its enactment so that, from November 2023, a planning condition is imposed on the grant of nearly all new planning permissions preventing any development from being carried out until a biodiversity gain plan has been submitted to the planning authority, and the planning authority has approved that plan. There is a three-month delay on that


requirement for smaller schemes, which are classified as under 10 dwellings or less than 0.5 hectares for residential. (At the time of writing, the controversy of the entire topic of biodiversity net gain was highlighted by the government’s announcement that the November date for the planning condition was being pushed forward into the new year!)


This is the basic mechanism which ensures that the process of measuring the


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