Planning for nature

Under Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006, every public body must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.

Under the Environment Bill, this will be amended so every public body has a duty to conserve and enhance biodiversity, and when carrying out the duty they must have regard to local nature recovery strategies. Such local nature recovery strategies (“LNRSs”) will be required of every local authority once the Environment Bill becomes law.

BBOWT has been involved in Defra’s pilot process for establishing LNRSs, so please get in touch with us for further guidance. 

Some ways that a local authority could implement its duty under Section 40 NERC are to:

• Integrate biodiversity conservation and enhancement throughout all departmental policies and activities
• Ensure all staff, managers and elected members understand how biodiversity issues relate to their own decisions and actions
• Provide sustained support to local biodiversity initiatives, such as Local Biodiversity Action Plans, Environmental Records Centres etc
• Protect and enhance biodiversity, in particular species and habitats of principle importance in line with statutory nature conservation obligations
• Ensure it has access to professional ecological expertise and up-to-date biodiversity information
• Report on progress towards national and local biodiversity targets
• Gather biodiversity data ready for LNRSs
• Publish annual biodiversity reports at least every three years showing how they comply with the section 40 duty.

The Environment Bill will make biodiversity net gain (“BNG”) mandatory for most developments. Biodiversity net gain is development that leaves biodiversity in a better state than before. BNG is already a requirement in the NPPF and polices on BNG are already included in some local plans and policies.

The mitigation hierarchy must be followed as part of achieving BNG, with impacts on biodiversity first avoided, then mitigated and only compensated for as a last resort.

BNG must not be used to justify developments that otherwise would not be permitted to go ahead due to their detrimental impacts. 

The Environment Bill currently proposes a mandatory 10% BNG, but The Wildlife Trusts believe a minimum of 20% should be required to ensure an actual positive impact for wildlife, and aid nature’s recovery. A 10% target could be easily missed, leaving biodiversity in a worse state. It is also important that the delivery of BNG is supported by a spatial plan included in a Local Nature Recovery Strategy, as soon to be mandated in the Environment Bill.

If a planning application fails to demonstrate the required BNG, permission should be refused – NPPF paragraph 175 and future obligations under the Environment Bill.

Further information on BNG can be found here.

The following list is not exhaustive, but gives some examples of reasons a planning committee could refuse to grant planning permission on ecological grounds:

(a)    Insufficient biodiversity survey
Paragraph 99 of circular 06/05 makes it clear that where there is reasonable likelihood of species being present and affected by development, an ecological survey must be carried out prior to permission being granted, and it should not be left to a planning condition. Therefore, if a survey has not been carried out, permission should be refused.     

Most applications should be supported by an initial ecological assessment such as a preliminary ecological appraisal or preliminary bat roost assessment. Only sites that are clearly devoid on wildlife, such as a car park or other site with no vegetation or structures that could be used by bats or birds should be excluded.

If an initial assessment has demonstrated that a protected or notable habitat/species could be affected then further survey and assessment is required to show how the development will mitigate the impact prior to permission being granted.

(b)    Unacceptable impact on biodiversity
NPPF paragraph 175 states that “When determining planning applications, local planning authorities should apply the following principles (a) if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused."

Changes to the planning system included in the Environment Bill only raise the importance of biodiversity, so where developments not only harm biodiversity, but fail to improve it, permission should be refused. 

(c)    Impact on designated sites
NPPF paragraph 175 (b) and (c) state that (b) development on land within or outside a Site of Special Scientific Interest (SSSI), and which is likely to have an adverse effect on it (either individually or in combination with other developments), should not normally be permitted… and (c) development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists. 

Where there is likely to be a negative impact on a Site of Special Scientific Interest, Special Protection Area, Special Area of Conservation or Ramsar Site, permission should be refused.

Local Wildlife Sites (LWS) are some of our most valuable wildlife areas. Local council plans need to identify, map and safeguard components of the local ecological networks, including the hierarchy of international, national and locally designated sites of importance for biodiversity, which includes Local Wildlife Sites. They should therefore be protected in planning decisions and many local authority planning policies recognise their importance.

(d)    Insufficient biodiversity net gain (BNG)
As stated above, the Environment Bill will bring in a mandatory biodiversity net gain requirement, but many local policies already include such an obligation. Therefore, if an application does not meet the required level of biodiversity net gain, permission should be refused.

A planning committee can place conditions on permission it grants for development. Section 70(1)(a) of the Town and Country Planning Act 1990 enables the local planning authority in granting planning permission to impose “such conditions as they think fit” in order to make the development appropriate and meet legal and policy requirements. Development carried out without having complied with a pre-commencement condition would be unlawful and may be the subject of enforcement action.

Below is a non-exhaustive list of planning conditions that could be imposed. Many more examples can be found in British Standard code of practice BS42020.

a.    Require Landscape and Ecological Management Plan to be submitted to LPA prior to commencement of development. 
b.    Require updated Biodiversity Impact Assessment to show biodiversity net gain.
c.    Require a Construction Environment Management Plan.
d.    Require a wildlife sensitive lighting strategy.
e.    Require a Biodiversity Offsetting Scheme to be found (can be achieved through a section 106 agreement).
f.    To limit hours of operation or types of use.
g.    To submit plans for particular ecological features – e.g. showing where bird/bat boxes/ hedgehog holes will go or the design of wildlife ponds.
h.    To require a tree protection plan to be submitted and followed.
 

Paragraph 170 of the NPPF states that

• Planning policies and decisions should contribute to and enhance the natural and local environment by: 

(a)    protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan);
(b)    recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural capital and ecosystem services – including the economic and other benefits of the best and most versatile agricultural land, and of trees and woodland;
(c)    maintaining the character of the undeveloped coast, while improving public access to it where appropriate; 
(d)    minimising impacts on and providing net gains for biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;
(e)    preventing new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of soil, air, water or noise pollution or land instability. Development should, wherever possible, help to improve local environmental conditions such as air and water quality, taking into account relevant information such as river basin management plans; and
(f)    remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate.

Paragraph 170 above applies to planning decisions as well as policies, so should always be taken into account by planning committees when reviewing planning applications. The need to protect and enhance biodiversity gives a valid reason to refuse permission when an application fails to do so.