Biodiversity

Part 6: Nature and Biodiversity

Section 98: Biodiversity gain as condition of planning permission

• Section 98 refers to Schedule 14, which applies a new general condition to all planning permissions granted in England, subject to exceptions. This condition requires that a biodiversity gain plan must be submitted and approved before development may lawfully

Section 99: Biodiversity gain in nationally significant infrastructure projects

• Section 99 introduces Schedule This sets out a biodiversity net gain requirement for Nationally Significant Infrastructure Projects (NSIPs).

Section 100: Biodiversity gain site register

• Subsections (1) to (3) make provisions for a public biodiversity gains sites register. They define some of the eligibility criteria for land to be included on the register, including that it must be maintained for at least 30 years after the completion of enhancement works, and set out how the benefits of habitat on the register might be allocated to a development. The register is intended to provide transparency in offsite enhancements for developers, planning authorities and others, and to help parties to confirm that any offsite biodiversity gains are only allocated to a single development and that the necessary agreements to deliver biodiversity gains are in The intention is that the register will also facilitate monitoring of biodiversity gain delivery and its outcomes by indicating what outcomes are expected where.
• Subsections (4) to (6) set out what regulations under this section are likely to provide for, including details of the procedure for registering land in the biodiversity gains site register, the criteria that must be satisfied for the enhancement of land to be registered, and thearrangements for amending or removing land on the register. Subsection (5) also allows provisions under subsection (4)(c) to guide the process of making and determining applications to register land as biodiversity gain sites and to provide for financial penalties that could be incurred by providing false or misleading information when registering a biodiversity gain site. Subsection (6) sets out further information requirements which will be fundamental to the register, such as the location and area of land and who will be responsible for carrying out the works to enhance biodiversity. Subsection (6) also explicitly references the allocation of biodiversity enhancement to a particular development, which will be important in preventing the ‘double-counting’ of a given enhancement (or the units that it creates).

• Subsection (7) allows the Secretary of State to change the minimum time for which biodiversity gains must be secured. This may not be changed to a period of less than 30 years, which is the initial duration specified in the Act’s The power applies to off-site biodiversity gain site enhancements. Schedule 14 paragraph 9 of this Act creates a similar power to increase the minimum period with respect to secured on-site habitat enhancements.
• Subsection (9) sets a duty on the Secretary of State to keep under review the supply of off-site biodiversity gains and whether the minimum duration (of 30 years) can be increased without adversely affecting that supply. This is intended to encourage increases to the minimum duration provided that the Secretary of State is confident that the increase will not stifle the supply of biodiversity enhancements and therefore risk undermining the market for biodiversity gains and ability to deliver gains in appropriate locations for wildlife. Changes made to the minimum duration would apply to all new allocated biodiversity gain sites or biodiversity gain plans submitted for approval, but would not retrospectively change the terms of existing site agreements (for example, existing conservation covenants or planning obligations attached to approved biodiversity gain plans).
• Subsections (8) to (11) set out procedures for making these regulations, and align definitions of some terms with those set out in Schedule 7A to the Town and Country Planning Act 1990.

Section 101: Biodiversity credits

• Subsections (1) to (5) make provision for the Secretary of State to set up a system to sell a supply of statutory biodiversity credits to the habitat compensation market. The provision of statutory credits will be made in England only. The sold credits will be equivalent to a specified gain in biodiversity value, which will be eligible for inclusion in a biodiversity gain Subsection (3) sets out the arrangements that may be made for the scheme and the operation of the scheme.

Subsection (4) requires the Secretary of State, in considering the price of a biodiversity credit, to set this at a level that does not discourage the development of local market schemes and non- credit habitat creation projects. The government intends to conduct a further review of the price of units, following engagement with stakeholders, before setting a price. The intention is that the price of biodiversity credits will be higher than prices for equivalent biodiversity gain on the market. Subsection (5) will require the Secretary of State to make information on the price of the units and their operation publicly available.

• Subsection (6) sets the framework that the Secretary of State must consider when handling the proceeds of the credits. Proceeds from the sale of credits will contribute to strategic ecological networks and provide long-term environmental benefits, and would be additional to existing requirements. This framework includes a provision that funds collected via this mechanism must be used for the purpose of securing biodiversity gain. Subsection (7) makes provision to exclude works to enhance habitat from the system where there is an existing requirement for the Secretary of State to act – for example, where land is subject to alternative legislativerequirements such as where a public body manages a Site of Special Scientific Interest. Through the Wildlife and Countryside Act 1981 (as amended), public bodies have a duty to take reasonable steps to further the conservation and enhancement of the special features of Sites of Special Scientific Interest.

• Subsections (8) to (10) require the Secretary of State to report on the operation of the biodiversity credit system on an annual basis. This includes setting out the total funding received and how this has been spent in securing habitat enhancement, which should include an assessment of the value of created habitats in terms of biodiversity units.

Section 102: General duty to conserve and enhance biodiversity

• Section 40 of the Natural Environment and Rural Communities Act 2006 (“the NERC Act”) places a duty on public authorities to have regard for the conservation of biodiversity when delivering their functions. This section makes textual amendments to section 40 of that Act, to avoid repeating definitions. The revisions make more explicit the requirement for public authorities to assess how they can take action to conserve and enhance biodiversity, and then take these This section also sets out how public authorities should abide by the revised duty.
• Subsection (2) adds to the heading of the biodiversity duty in the NERC Act, setting out that

this duty is changing from “conserving” to “conserving and enhancing” biodiversity.

• Subsection (3) replaces existing subsections (A1) and (1) of the NERC Act with new subsections (A1) to (1F).
• New subsection (A1) defines the term “general biodiversity objective”, which is used in section 40 to direct the activity taken by public authorities under this duty. This extends the duty of public authorities beyond the original NERC Act, which referred only to conservation, so that it includes the enhancement of biodiversity in England. The aim is to provide for the enhancement or improvement of biodiversity, not just its maintenance in its current state.
• New subsection (1) sets out that, in order to comply with the revised biodiversity duty, a public authority must periodically consider the opportunities available to improve biodiversity, across the full range of its functions. This represents a proactive, strategic assessment of a public authority’s functions, rather than considering each function in isolation as required by the original section 40 duty.
• New subsection (1A) sets out the process that the public authority must undertake following the strategic It may decide there is no action it can reasonably take that is consistent with the proper exercise of its functions. For example, it may decide a particular action is not possible within existing budget constraints, not good value for money or conflicts with other priorities. If there is action it can take, however, then paragraph (a) sets out that it must decide how that action can be put into effect, through appropriate policies and objectives. Paragraph

(b) then requires the public authority to take the action.

• New subsection (1B) provides further detail on those activities considered to be contributing to the general biodiversity objective. It establishes that the duty can be satisfied by adjusting existing policies and objectives, rather than requiring public authorities to introduce new policies or undertake new projects.
• New subsections (1C) to (1E) establish the frequency with which the public authority should consider how it can improve biodiversity and then take action. New subsection (1C) provides that the initial assessment must be completed within one year of the amended duty coming into force. New subsection (1D) sets out that subsequent assessments to determine whether there isaction it can reasonably take, and what that action should be, must take place at least every five years. New subsection (1E) requires that the decisions around which policies and objectives can be used to further the biodiversity objective, as required by subsection (1A)(a), should then follow as soon as is practically possible.

• New subsection (1F) explains that, although the requirement is to evaluate opportunities to fulfil the general biodiversity objectives “from time to time”, a public authority is free both to carry out a strategic assessment of its policies and specific objectives and to take action for biodiversity at any interval, as long as this consideration takes place frequently enough to satisfy new subsections (1C) and (1D).
• Subsection (4) of section 102 amends an existing reference in section 40(2) of the NERC Act to ensure it refers to new subsections (1) and (1A) of the same section.
• Subsection (5) of section 102 requires that public authorities must have regard to any relevant Local Nature Recovery Strategies (LNRSs), Species Conservation Strategies and Protected Site Strategies as part of their strategic assessment of their functions, establishing the relationship between the measures. LNRSs map existing important areas for nature and show the opportunities that exist in an area to recover and enhance nature. LNRSs will support public authorities in deciding the most appropriate and effective action to take to further the biodiversity objective under new section 40(1A) of the NERC Act, and in turn subsection (5) will support the implementation of LNRSs. Species Conservation Strategies and Protected Site Strategies (introduced in sections 109 and 110 respectively) are more targeted measures intended to address a range of impacts on species and protected sites. They will also support public authorities in determining the most appropriate and effective action to take in those areas where such a strategy is in operation.
• Subsection (5) also adds a requirement for the Secretary of State to give guidance to local planning authorities. The guidance will specify how they are to take a local nature recovery strategy into account when discharging their duties under new section 40(1) and (A1) of the NERC Act 2006 concerning the conservation and enhancement of The Secretary of State is required to publish this guidance within two years from when this section comes into force, in such manner as the Secretary of State thinks fit. The Secretary of State is then required to keep the guidance under review and revise it when they consider it appropriate.
• Subsection (6) updates the existing explanation of “conserving biodiversity” by directing public authorities to give particular focus to the conservation, restoration and enhancement of species and habitats when deciding the actions to take under the biodiversity objective. This particular emphasis on species and habitats reflects their significance within biodiversity overall, and the wider benefits for nature and society that can be accrued through actions for species and
• Subsection (7) provides that in the case of HMRC, the duty does not apply to its functions in England alone, but also extends to its functions in This is to maintain the amendment made to section 40 by the Environment (Wales) Act 2016. This subsection also clarifies the spatial extent of the general biodiversity duty, establishing that the territorial sea adjacent to England falls under the duty.
• Subsection (8) amends section 41 of the NERC Act so that its references to section 40 correctly reflect the amendments made by this It also adds a reference to enhancing biodiversity to section 41(1) of that Act. This reflects the increased level of ambition set out in the Act, for not only conserving the existing biodiversity of England but also enhancing biodiversity, where appropriate.

Section 103: Biodiversity reports

• This section adds new section 40A to the NERC Act, which creates a power for the Secretary of State to designate public authorities who are required to report on the action they have taken under the biodiversity objective set out in section It also defines, at a high level, the content of the biodiversity reports and their frequency. These reports will capture how public authorities with significant landholdings have sought to conserve and enhance biodiversity, and will contribute to the improvement of information on protected sites, priority habitats and priority species.
• Subsection (1) sets out the public authorities to which new section 40A The scope of this reporting requirement is limited in comparison to the general biodiversity duty, as the latter applies to all public authorities. All local authorities and local planning authorities, excluding parish councils, will be required to produce biodiversity reports. It would not be reasonable to require other public authorities that do not have landholdings or the potential to improve biodiversity to produce reports, and so additional public bodies that must report will be designated by the Secretary of State in subsequent regulations as stipulated in subsection (8)(a).
• Subsection (2) requires the public authorities identified in subsection (1) to produce biodiversity
• Subsections (3) and (4) specify the required content of a biodiversity report. In subsection (3), paragraphs (a) and (b) set out that this report will both reflect on the action the public authority has taken under the duty over the reporting period, and look forward to the actions it will take in the subsequent five-year reporting period. This qualitative information will be accompanied by quantitative data, as provided by paragraph (c). The specific data required will be stipulated in regulations issued by the Secretary of State; it could, for example, include the proportion of local wildlife sites in favourable condition. In addition to the required qualitative and quantitative information, paragraph (d) sets out that the public authority is free to include any other information it considers relevant. Subsection (4) specifies additional reporting requirements for local planning authorities – namely, the provision of information on biodiversity net gain. Local planning authorities must give a qualitative summary of the action they have taken to comply with mandatory biodiversity net gain, and any gains within their
• Subsections (5) to (7) set out the timing and frequency of reporting. Under subsection (5), the report must be published within 12 weeks after the end of the period that it covers, in order to ensure that the information shared is up-to-date and relevant upon publication. Subsection (6) sets out that a public authority must publish its first biodiversity report within three years of being designated as required to report, although it is at liberty to decide when to publish within this window. This applies both in cases when the public authority is designated on the introduction of section 103 and when the public authority is brought into scope at a later point. After the first report, subsection (7) establishes that the public authority must publish subsequent reports at least every five years, though again it can choose when to publish within this window.
• Subsection (8) creates a power for the Secretary of State to issue regulations that designate public authorities as required to report, and to further define what data must be included in the biodiversity report. This will ensure key quantitative data is reported in a consistent fashion across all reports, thereby making comparisons across the reports easier. Having such data defined in regulations will also allow for it to be updated in the future as required.
• Subsection (9) clarifies that the reporting requirement will not apply to public authorities that do not exercise functions in England.
• Subsections (10) and (11) establish that the regulations should be issued through a statutory instrument subject to the negative resolution procedure in Parliament.
• Subsection (12) clarifies that the definitions within this section are the same as used in the wider section 40 duty and in section 102.

Section 104: Local nature recovery strategies for England

• This section provides for the creation of Local Nature Recovery Strategies (LNRSs) in England, for how the geographical coverage of each LNRS will be determined, and for the relationship between LNRSs and the biodiversity duty under the NERC Act.
• Subsections (1) and (2) set out that the requirement for LNRSs applies to England and that, taken together, all areas of England will be covered by an LNRS.
• Subsection (3) sets out that the area covered by each LNRS will be determined by the Secretary of State. This approach allows flexibility to make sure that the area covered by each LNRS balances the potentially competing needs to be ecologically meaningful (that is, based on the common geographic, geological, topographical or other physical features that help define the ecology of an area, and of sufficient scale to include a range of habitats and land uses) and align with existing administrative boundaries. It will also allow alignment of boundaries between neighbouring LNRS areas to avoid gaps or overlap. It is anticipated that the area covered by each LNRS will be approximately county-scale, but with the potential to vary to best accommodate differing local circumstances.
• Establishment of the area covered by an LNRS is closely linked to agreement on the identity of the responsible authority, which will lead on the production of the The process for doing this is set out in section 105.
• Subsection (4) states that the area of a local authority, other than a county council, may not be split between different This requirement reflects the importance of local authorities in producing and implementing the LNRS, and is intended to make it easier for individual local authorities to do so by making each LNRS area an aggregate of local authority areas. This requirement will also facilitate the agreement of individual LNRS boundaries, and make sure they operate at scales most relevant to local authorities.
• The bodies included within the definition of “local authority” are listed in section 108(2). County councils are exempted from the general prohibition in splitting local authorities between LNRSs because of their larger size, and the potential that not doing so would result in a de facto requirement that LNRSs conform to county boundaries, irrespective of ecological or other practical considerations. Whilst in many cases there may be good reason for LNRS and county council boundaries to align, it is reasonable to anticipate situations where this would not be the case.
• Subsection (5) highlights the relationship between LNRSs and the duty to conserve biodiversity under section 40 of the NERC Act. The existing duty is modified by this section to require that all public authorities must have regard to any relevant LNRS in the proper exercise of their

Section 105: Preparation of local nature recovery strategies

• This section sets out the process by which LNRSs are to be prepared, published, reviewed and republished. It also provides a power for the Secretary of State to make regulations regarding this process.
• Subsection (1) sets out that each LNRS will be prepared and published by a “responsible authority”. The requirement to publish the LNRS is to ensure that the LNRS is a publicly available document.
• Subsection (2) states that the Secretary of State will appoint the responsible authority for each LNRS, and lists the authorities who may potentially be appointed. In addition to those local authorities listed at section 108(2), the Secretary of State may appoint a mayoral authority, national park (including the Broads Authority) or Natural England.
• It is intended that the appointment of the responsible authority will be by mutual agreement between the Secretary of State and the authority. Where the LNRS area corresponds with county or mayoral boundaries, it may be that the county council or mayoral authority would be well-placed to act as responsible Where this is not the case, it would be preferable for the responsible authority to be another local authority, mayoral authority or national park to foster strong links between the LNRS and the land-use planning system and to benefit from existing local democratic mechanisms. Alternatively, Natural England would act as responsible authority.
• Subsection (3) requires that the LNRS is reviewed and republished from time to time to ensure it remains current, relevant and forward-looking. Updates may be periodic or triggered by the Secretary of State publishing an updated national habitat map under section 107(3). Regulations made under subsection (5) may introduce specific requirements regarding the timings for reviewing and republishing of LNRSs. Information collected and published under the NERC reporting duty is expected to provide an important resource when reviewing and republishing the LNRS.
• Subsection (4) provides that the Secretary of State can make regulations to introduce further requirements regarding how LNRSs must be prepared and published; both in the first instance and in later versions. Subsection (5) provides a non-exhaustive list of some specific aspects of this process that regulations may provide for. These are:
• provision of information by a local authority that is not the responsible authority;
• agreement of the LNRS by all local authorities within the LNRS area;
• the procedure for reaching agreement and resolving disagreements;
• consultation requirements; and
• timings for reviewing and re-publishing of the
• These regulations provide a mechanism for creating consistency and maintaining standards between LNRSs and for encouraging a broad, collaborative approach to producing LNRSs, involving a wide range of stakeholders from public, private and voluntary Regulations allow for a greater level of detail than would be appropriate in primary legislation, and can be updated more easily to reflect experience of good practice.
• Subsection (6) sets out that regulations made under subsection (4) will be by statutory instrument subject to the negative resolution process.

Section 106: Content of local nature recovery strategies

• This section defines the required content of an LNRS, setting out the general nature of the documents that each LNRS must comprise and the information that these documents must contain. It also provides for the Secretary of State to issue statutory guidance to provide further
• Subsection (1) provides that each LNRS must include (a) a statement of biodiversity priorities for the plan area and (b) a local habitat map for the full extent of the area under the plan, either through one or multiple maps.
• Subsection (2) specifies what the statement of biodiversity priorities referred to under subsection (1)(a) must include. The required elements are:
• a description of the plan area and its biodiversity;
• a description of the opportunities for recovering or enhancing biodiversity;
• the priorities for recovering or enhancing biodiversity; and
• proposals of potential measures relating to those
• In combination these elements are intended to provide a comprehensive vision of the current and future potential biodiversity value of the plan area, and some proposed practical steps that different bodies may choose to support to help make improvements.
• Subsection (3) specifies what the local habitat map referred to under subsection (1)(b) must include. The required elements are:
• national conservation sites;
• local nature reserves (as designated under section 21 of the National Parks and Access to the Countryside Act 1949); and
• other areas that, in the opinion of the responsible authority, are or could become of particular importance for biodiversity, or where the recovery or enhancement of biodiversity could make a particular contribution to other environmental benefits.
• The term “national conservation sites” is defined in section 108(3). National conservation sites and local nature reserves are treated separately because information on them will be made available to the responsible authority via different mechanisms. Section 107 creates a duty on the Secretary of State to provide responsible authorities with mapped information on national conservation sites, whilst information on local nature reserves is held by local authorities.

Where a local authority is not the responsible authority, a requirement for them to provide information on local nature reserves to the responsible authority could be introduced via regulations made under section 105(4) to make sure that this forms part of the LNRS.

• Subsection (3)(c)(i) is what is sometimes referred to as ‘biodiversity opportunity mapping’. The government is aware of more than a dozen different examples of biodiversity opportunity maps that have been produced by local authorities or on their behalf – such as Surrey Nature

Partnership’s Biodiversity Opportunity Areas: the basis for realising Surrey’s ecological network. It is intended that LNRSs will build on and seek to accommodate existing best practice.

• Subsection (3)(c)(ii) allows for the opportunities included in the local habitat map to consider other environmental benefits alongside recovering and enhancing biodiversity. For example, planting a new area of woodland for biodiversity would also sequester carbon, and potentially reduce the likelihood of flooding downstream. Intentionally targeting such multiple benefits may prove more cost-efficient and, in turn, such proposals may be more likely to be acted upon. Statutory guidance made under subsection (5) provides a mechanism by which approaches to including multiple environmental objectives could be applied consistently across all LNRSs.

• Subsection (4) establishes that a local habitat map that only partially covers the area within the plan must correlate to the area of at least one of the local authorities within the plan This is intended to avoid an individual local authority, other than potentially a county council, from having to contribute to and consider more than one local habitat map.
• Subsection (5) allows the Secretary of State to issue guidance on the information that an LNRS must include, in relation to the biodiversity priorities, the local habitat map or any other Guidance is intended to assist responsible authorities in preparing an LNRS and to promote consistency between LNRSs.
• Subsection (6) sets out that when the responsible authority is preparing an LNRS, it must have regard to any guidance that has been issued by the Secretary of State under subsection (5). This gives the guidance issued under subsection (5) greater standing and effect in achieving its purpose. The issuing of new or revised guidance would not require a responsible authority to revisit an LNRS that has already been published.
• Subsection (7) requires guidance made under this section to be laid before Parliament before it is published.

Section 107: Information to be provided by the Secretary of State

• This section introduces a new duty on the Secretary of State to make available certain information to the responsible authority to assist with the production of the LNRS.
• Subsection (1) requires the Secretary of State to prepare and publish a national habitat map for
• Subsection (2) specifies that the national habitat map must contain:
  • national conservation sites; and
  • other areas that the Secretary of State considers to be of particular importance for
• The term “national conservation sites” is defined in section 108(3). Information on these sites is held by central Other areas of particular importance for biodiversity might include locations of scarce habitats or habitats upon which scarce species depend outside of existing protected sites.
• Subsection (3) allows for the Secretary of State to review and republish the national habitat map from time to time. The distribution of different habitat types can be expected to change over time, and it is anticipated that technology, such as satellite imaging, may present new options for habitat mapping. Publication of an updated national habitat map may potentially trigger a responsible authority to review and republish its LNRS, as provided for in section 105(3).
• Subsections (4) and (5) require the Secretary of State to inform the responsible authority of any

areas in the authority’s strategy area that the Secretary of State considers could both:

• be of greater importance for biodiversity, or where the recovery or enhancement of biodiversity could contribute to other environmental benefits; and
• contribute to establishing a network of areas for recovery and enhancement of biodiversity across England as a whole.
• This provision is similar to that in section 106(3)(c), which specifies that such areas are a required component of local habitat Whilst the intention is that the large majority of such “biodiversity opportunities” are identified locally by the responsible authority through an open collaborative approach, subsections (4) and (5) are intended to also allow the Secretary of State to propose national priorities for an area. This might theoretically include future landscape- scale biodiversity projects.
• Similarly to section 106(3)(c)(ii), subsection (5)(a) allows for the opportunities identified by the Secretary of State to consider other environmental benefits alongside recovering and enhancing biodiversity. Thus, areas might include those identified for other environmental reasons that could also have a biodiversity benefit, such as forestry creation.
• The requirement at subsection (5)(b) that the Secretary of State should consider that the areas identified could contribute to establishing a network of areas for recovery and enhancement of biodiversity reflects the intention that LNRSs should not exist in isolation but should aggregate together. The government has recognised the need for coordinated action to address biodiversity decline through, amongst other policies, the commitment to create a national nature recovery network in the 25 Year Environment Plan (which this Act will make the first statutory environmental improvement plan). The information provided by the Secretary of State under this provision is intended to help individual responsible authorities develop LNRSs that can form the basis of an England-wide network for the recovery and enhancement of
• Subsection (6) extends the duty on the Secretary of State to provide the responsible authority with information to anything else that the Secretary of State holds that the Secretary of State considers would assist in the preparation of an LNRS. Examples of such information might include other mapped information, like climate change assessments, soils, geology or topography that the Secretary of State considers might help the responsible authority assess the potential of a location for recovering biodiversity.

Section 108: Interpretation

• This section offers clarification on the definition of the terms used in the preceding sections on
• Subsection (1) sets out that these interpretations apply to the entirety of this section on
• Subsection (2) defines the term “local authority”, setting out the different classifications of local government to which these sections apply.
• Subsection (3) defines the term “national conservation site”, setting out the types of sites that must be This definition applies at both the local level for the responsible authority in developing the local habitat map that makes up the LNRS, and also at the national level for the Secretary of State in providing information to the responsible authority through the national habitat baseline map.

Section 109: Species conservation strategies

• This section establishes species conservation strategies, which may be prepared by Natural England with the purpose of improving the conservation status of a specified It further requires local planning authorities, and any other public authority specified in regulations by the Secretary of State, to cooperate with Natural England in preparing and implementing a strategy. It then establishes that these authorities must consider any relevant strategy as they carry out their functions.
• Natural England has already developed such a strategic approach in relation to licensing activity impacting on great crested Evidence from this existing scheme will be used to inform aspects of the development of future strategies for other species.
• In the areas of the country where species conservation strategies are put into effect, the measures they include will be integrated into the relevant Local Nature Recovery This will allow them to form part of a wider landscape-scale plan for nature.
• Subsection (1) specifies that a strategy may be prepared by Natural England, and that Natural England should publish it. It further defines the overall purpose of the strategy as improving the conservation status of any species of flora or fauna. This is to ensure that Natural England can prepare a strategy for any species where it is beneficial, without being constrained to any specific list of endangered or threatened species.
• Subsection (2) establishes the name of the new type of
• Subsection (3) sets out that a strategy should apply to a specific area, which can consist of England or any part of This allows Natural England to define the area to best suit the needs of the population of the species to which the strategy applies.
• Subsection (4) lists elements that may form part of a The list is not definitive, as each strategy will be prepared to best support the conservation needs of a particular species and those needs will vary.
• Paragraphs (a) and (b) of subsection (4) establish that a strategy may identify areas or features in the strategy area that are important for the protection of the species (such as key habitat) and set out priorities for where habitat can be created or improved so as to improve the species’ conservation status. Paragraphs (c) and (d) further specify that the strategy may include Natural England’s proposal for improving the conservation status of the species and Natural England’s advice to other decision making bodies, for example about conditions relating to the species that should attach to any approval given. Finally, paragraph (e) specifies that the strategy may set out how the mitigation hierarchy (avoid, mitigate, compensate) should be applied to addressing impacts on the strategy area from activity such as development.
• Subsection (5) gives Natural England a power to periodically amend a This will allow strategies to be updated as evidence emerges showing how effective they are in improving the conservation status of the species.
• Subsection (6) places a duty on local planning authorities and other prescribed authorities (as established by the Secretary of State through regulations as set out in subsection (9)) to cooperate with Natural England in preparing and implementing a strategy. The duty only applies if the cooperation required is relevant to the functions of the authority. This duty is a proportionate way to ensure Natural England has the data and support required to efficiently and effectively establish and lead a strategy.
• Subsection (7) provides a power for the Secretary of State to produce guidance for authorities setting out what is required by the duty to cooperate in subsection (6). The power allows bespoke guidance to be prepared for each strategy, as the cooperation required will vary for different species and strategy areas.
• Subsection (8) requires guidance made under this section to be laid before Parliament before it is published.
• Subsection (9) requires authorities to consider any relevant strategies as they carry out their functions. This will have the effect that strategies are considered when local plans are developed or authorities carry out any other relevant functions which might impact on the conservation status of the species in the strategy area.
• Subsection (10) defines some terms used throughout the It clarifies that the scope of the strategies extends to the territorial sea adjacent to England, but not the sea adjacent to Wales or Scotland as the legislation only applies to England. It further defines “local planning authority” as the definition used in the Town and Country Planning Act 1990.
• Subsection (10) also gives the Secretary of State a power to specify in regulations other prescribed public authorities in addition to local planning authorities that may be required to cooperate with natural England in preparing and operating a While cooperation will largely be required only from local planning authorities, a specific strategy might require cooperation from other public authorities such as a marine management organisation or the Environment Agency.

1000 Subsection (11) establish that the regulations in subsection (10) should be issued through a statutory instrument subject to the negative resolution procedure in Parliament.

Section 110: Protected Site Strategies

1001 This section establishes Protected Site Strategies, which may be prepared by Natural England with the purpose of improving the conservation and management of a protected site, and managing the impact of activity, such as off-site development, on those sites. It requires local planning authorities and other appropriate public bodies to cooperate with Natural England in preparing a strategy. It then establishes that public bodies must consider any relevant strategy as they carry out their functions.

1002 Suitable Alternative Natural Green spaces (SANGs) in the Thames Basin Heaths are an example of a strategic approach established by Natural England in cooperation with local planning authorities and other appropriate public bodies. The section will place Protected Site Strategies prepared by Natural England on a legislative footing.

1003 In the areas of the country where Protected Site Strategies are put into effect, the measures they include will be integrated into the relevant Local Nature Recovery Strategies. This will allow them to form part of a wider landscape-scale plan for nature.

1004 Subsection (1) specifies that a strategy may be prepared by Natural England, and that Natural England should publish it. It further defines the overall purpose of the strategy as improving the conservation and management of a protected site. This is to ensure that Natural England can prepare a strategy for any protected site where it is beneficial.

1005 Subsection (2) establishes the name of the new type of strategy.

1006 Subsection (3) sets out the definition of a protected site for which a strategy can be prepared within England and its adjacent territorial sea.

1007 Subsection (4) lists elements that may form part of a strategy. The list is not definitive as each strategy will be prepared to best support the conservation and management of a protected site, and those needs will vary.

1008 Paragraph (a) of subsection (4) establishes that a strategy may include an impact assessment of development on the conservation or management of the protected site. Paragraph (b) establishes that a strategy may also include Natural England’s advice on how the mitigation hierarchy (avoid, mitigate or compensate) should be applied to address adverse impacts identified by the impact assessment. Paragraphs (c) and (d) further specify that a strategy may include any measures that Natural England considers necessary for the conservation or management of a protected site.

1009 Subsection (5) sets out the bodies that Natural England must consult in preparing a strategy. These include local planning authorities, the Secretary of State and any other public bodies for whom the strategy may be of relevance. It ensures strategies are prepared with input from key stakeholders.

1010 Subsection (6) defines the term “an adverse impact on the conservation or management of a protected site” for the different types of protected sites. The definitions align with existing legislation for consistency.

1011 Subsection (7) places a duty on local planning authorities and others (listed in subsection (5)) to cooperate with Natural England in preparing a strategy. The duty only applies if the cooperation required is relevant to the functions of the authority. This duty is a proportionate way to ensure Natural England has the data and support required to efficiently and effectively establish and lead development of a strategy.

1012 Subsection (8) provides a power for the Secretary of State to produce guidance for authorities setting out what is required by the duty to cooperate in subsection (7). The power allows bespoke guidance to be prepared for each strategy, as the cooperation required will vary for different protected sites.

1013 Subsection (9) requires guidance made under this section to be laid before Parliament before it is published.

1014 Subsection (10) requires bodies to consider the strategies as they carry out their duties under protected sites legislation. This will ensure that strategies are taken into account when local plans are developed, or when authorities carry out any other functions which might impact on the conservation or management of a protected site.

1015 Subsection (11) gives Natural England a power to periodically amend a protected site strategy. This will allow strategies to be updated as evidence emerges showing how effective they are in improving the conservation or management of a protected site.

1016 Subsection (12) places a duty on Natural England to consult with relevant local authorities and others (listed in subsection (5)) when amending a strategy (under subsection (10)) to the extent that those amendments are relevant to the authorities’ functions.

1017 Subsection (13) defines some terms used throughout the section. The definitions align with other relevant legislation for consistency. It clarifies that the scope of the strategies extends to the territorial sea adjacent to England, but not the sea adjacent to Wales or Scotland as the legislation only applies to England. It further defines “local planning authority” as the definition used in the Town and Country Planning Act 1990.

Section 111: Wildlife conservation: licences

1018 Many wild animals and their habitats are protected under the Wildlife and Countryside Act 1981 (“the 1981 Act”) and the Conservation of Habitats and Species Regulations 2017 (“the 2017 Regulations”). A licence may be required for activities that might otherwise be offences under the legislation, such as demolishing an unsafe derelict building that contains a bat roost. This section removes inconsistencies between the licensing provisions in the 1981 Act and the 2017 Regulations, particularly those that may impede species conservation strategies. It enables licences to be issued under section 16(3) of the 1981 Act for reasons of overriding public interest. It also ensures that no licence may be issued unless there is no other satisfactory solution and the granting of the licence is not detrimental to the survival of any population of the species concerned. It also extends the maximum period for which a licence may be issued by Natural England from two to five years.

1019 Subsection (1) establishes that, if a licence has been granted by Natural England under the 2017 Regulations for an activity, the licence will provide a defence in relation to carrying out that same activity under the 1981 Act. This clarifies that Natural England only needs to issue one licence to cover an activity in relation to a particular species.

1020 Subsection (2) sets out that protected species licences can be issued for “reasons of overriding public interest” in England under the 1981 Act. An equivalent licensing purpose is currently set out in the 2017 Regulations, but not in the 1981 Act, which can lead to uncertainty about how activities should be licensed for species that are covered by both pieces of legislation. Removing this uncertainty ensures a legally consistent approach to licensing under the 1981 Act and the 2017 Regulations, and also helps to clarify that Natural England only needs to issue one licence to cover an activity for a particular species. This does not weaken the strict protections that are in place for the most vulnerable species.

1021 Subsection (3) specifies that no licence may be issued under section 16(3) of the 1981 Act unless there is no other satisfactory solution and the granting of the licence is not detrimental to the survival of any population of the species concerned. These additional safeguards apply to all

species licences issued under section 16(3), not just those granted under the new “overriding public interest” purpose. The first safeguard requires applicants to demonstrate that there is no suitable alternative to undertaking an activity under licence. The second ensures that licences will only be granted after full consideration of the impact of an activity and where this will not be detrimental to populations of the protected species at local, regional or national levels.

1022 Subsection (4) establishes that licences granted by Natural England under section 16(3) of the 1981 Act can be for a period of up to five years instead of up to two years. The availability of a longer licensing period supports species conservation strategies which aim to achieve the best long-term outcomes for the species concerned. It may also be beneficial in other circumstances where longer licences pose no risk to the conservation status of the species concerned. It therefore provides Natural England with the discretion to set a longer licence period when that is appropriate.

1023 Subsection (5) ensures that the definition of “appropriate authority” includes the “relevant conservation body” for the purposes of section 16(3) of the 1981 Act and applies to the new licensing purpose established by subsection (2). The relevant conservation body is Natural England.

1024 Subsection (6) establishes that licences granted by Natural England under regulation 55 of the Conservation of Habitats and Species Regulations 2017 can be for a period of up to five years instead of up to two years, in a similar way and for similar reasons to subsection (4).

Section 112: Habitats Regulations: power to amend general duties

1025 Regulation 9 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) sets out duties for relevant public authorities to exercise their nature conservation functions in compliance with the requirements of the Habitats Directive and the Wild Birds

Directives (“the Directives”) to maintain or restore protected habitats and species.

1026 This section provides the Secretary of State with the power to amend regulation 9 to support delivery of domestic biodiversity priorities, rather than remaining bound by legacy EU legislation, without reducing the level of environmental protection provided. The power is designed with the aim of conserving and enhancing biodiversity.

1027 Subsection (1) provides the Secretary of State with the power to amend the Habitats Regulations in England only, for the purposes set out in subsection (2).

1028 Subsection (2) sets out the purpose of the section. Subsection (2)(a) requires public authorities covered by regulation 9(1) to comply with the requirements imposed and the objectives specified in regulations made under this power. Subsection (2)(b) requires competent authorities covered by regulation 9(3) to have regard to the matters specified by regulations under this power.

1029 Subsection (3) allows for requirements to be imposed or objectives and matters specified in relation to biodiversity targets set out in Part 1 of the Environment Act and the measures relating to biodiversity in the Environmental Improvement Plan.

1030 Subsection (4) enables the Secretary of State to impose additional requirements or specify additional objectives or matters if appropriate for the conservation or enhancement of biodiversity. Subsections (3) and (4) enable the Habitats Regulations to be aligned with domestic biodiversity priorities without reducing the level of environmental protection.

1031 Subsection (5) provides for consequential amendments to be made to any references to requirements, objectives or provisions of the Directives within the Habitats Regulations. The purpose is to ensure consistency within the regulations.

1032 Subsections (6) to (10) provide a number of requirements which must be met before the power in subsection (1) can be exercised.

1033 Subsection (6) places a duty on the Secretary of State to have regard to the particular importance of furthering the conservation and enhancement of biodiversity when making amendments to regulation 9.

1034 Subsection (7) stipulates that the Secretary of State can make amendments using this power only if satisfied that the new regulations do not reduce the level of environmental protection currently provided by the Habitats Regulations.

1035 Subsection (8) requires the Secretary of State to lay before Parliament and publish a statement prior to making any regulations to explain how the condition in subsection (7) is met.

1036 Subsection (9) places a duty on the Secretary of State to consult as appropriate prior to using the power under this section to make regulations.

1037 Subsection (10) stipulates that the power to amend regulation 9 can only be used from the 1 February 2023. This is the date set out in section 7(5) of the Act in relation to “the significant improvement test”, and section 10(3) of the Act in relation to when the first review of the Environmental Improvement Plan must be completed.

1038 Subsection (11) defines the term ‘the Directives’ and the definition is in alignment with the existing use of the term in the Habitats Regulations to ensure consistency. It also sets out the definition for the use of the term ‘England’ as including the territorial sea up to 12 nautical miles, however, it does not include any territorial waters adjacent to (a) Wales or (b) Scotland as the legislation only applies to England. The Habitats Regulations apply to inshore areas up to 12 nautical miles. The offshore area, 12-200 nautical miles, is covered by the Conservation of Offshore Marine Habitats and Species Regulations.

1039 Subsection (12) establishes that any regulations made under the power to amend regulation 9 must be made through a statutory instrument subject to the affirmative procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Section 113: Habitats Regulations: power to amend Part 6

1040 This section confers a power on the Secretary of State to amend Part 6 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). This part of the Regulations sets out the requirements for the assessment of plans and projects on European protected sites, restricts the approval of such plans or projects unless the decision-maker is satisfied that the site is not adversely affected and provides for appropriate mitigation or compensation. This ensures that habitats and species are properly protected and adverse impacts avoided.

1041 The national site network of European sites provides protection for habitats designated for a particular purpose and supports delivery of international and domestic biodiversity objectives.

1042 This power would enable changes to be made where evidence suggests that amending the regulations can make the processes clearer and more legally certain to improve the condition of protected sites and the broader natural environment.

1043 Subsection (1) provides a power for the Secretary of State to amend Part 6 of the Habitats Regulations in England.

1044 Subsections (2) to (5) provide a number of requirements which must be met before the power in subsection (1) can be exercised.

1045 Subsection (2) places a duty on the Secretary of State to have regard to the particular importance of furthering the conservation and enhancement of biodiversity when making amendments to Part 6 of the Habitats Regulations.

1046 Subsection (3) stipulates that the Secretary of State can make amendments using this power only if satisfied the new regulations do not reduce the level of environmental protection currently provided by the Habitats Regulations.

1047 Subsection (4) requires the Secretary of State to publish and lay before Parliament a statement prior to making any regulations to explain how the condition in subsection (3) is met.

1048 Subsection (5) places a duty on the Secretary of State to consult as appropriate prior to using the power under this section to make regulations.

1049 Subsection (6) defines the term ‘England’ and the definition is in alignment with the use of the

term in section 112 (power to amend general duties).

1050 Subsection (7) establishes that any regulations made under the power to amend Part 6 must be made through a statutory instrument subject to the affirmative procedure. This means it must be laid before and approved by a resolution of each House of Parliament.

Section 114: Controlling the felling of trees in England

1051 Section 114 introduces Schedule 16, which enables the Commission to create a local land charge where illegal felling has taken place or a licence has not been complied with. A local land charge is a public record and the buyer will take the land subject to the charge.

1052 Section 115 inserts new section 96A into the Highways Act 1980.

 

New section 96A Duty of local highway authorities in England to consult before felling  street trees

1053 Subsection (1) requires local highway authorities to consult the public before felling any street trees. Defra has used the definition of highway authority as set out in section 1 of the Highways Act 1980. This includes the council of a county or metropolitan district, Transport for London as the highway authority for major roads in London, and the council of a London borough for other London roads. Roads managed by other highway authorities that are not local highway authorities – such as trunk roads managed by the Secretary of State through Highways England – are out of scope. Only trees on land legally adopted as a highway, and therefore in scope of local highway authorities powers/duties, are in scope.

1054 Local highway authorities must consult on all street trees they are considering felling, unless the tree is exempt. If appropriate, several street trees can be consulted on at once.

1055 Subsection (2) lays out the requirement for local highway authorities to consider any guidance released by the Secretary of State. The government intends to publish guidance to cover how this duty should be applied and the process that should be used.

1056 Subsection (3) sets out trees that are exempt from the consultation required in this duty. This means that any tree meeting the criteria as laid out in this subsection would not require a consultation before being felled. Further explanation of some of the exemptions have been provided below:

• The tree size exemption used in paragraph (a) is consistent with the standard tree size definitions used by the British Tree Nursery sector.
• The tree is required to be felled under the Plant Health Act 1967. Under this Act, statutory plant health notices can be issued that require the owner or manager to eradicate or contain notifiable pests and This can include felling a tree and

failure to comply can result in enforcement action and prosecution.

• The tree is required to be felled under any enactment on the basis that the tree is dangerous. This covers trees that need to be felled urgently because they present an immediate danger to life or property.
• The tree is required to be felled in order to comply with section 20 or 29 of the Equality Act 2010 because the tree is causing an This means that a tree

can be felled where it is blocking, or otherwise making the pavement a danger for disabled people to use. This would result in the footway being unusable for people with a disability.

• The tree is required to be felled as part of development authorised either by a granted planning permission or by an outlining planning permission as defined by the Town and Country Planning Act 1990. Specific sections of this are specified in the sections.

1057 “Street trees” are those situated on urban roads as defined under subsection (4).

• Subsection (1)(a) references section 81 of the Road Traffic Regulation Act 1984, which specifies a general speed limit for restricted It states that a restricted road is one where a speed limit of 30 miles per hour is in place.

 

 

 

• Subsection (1)(b) references roads that would otherwise have a 30 miles per hour speed limit but have their speed limit increased to 40 miles per These roads will also be in scope of the duty to consult.
• Subsection (1)(c) brings into scope urban streets excluded by the above definitions, for example because the road, although urban, has a higher speed limit.

Section 116: Use of forest risk commodities in commercial activity

1058 Section 116 introduces Schedule 17, which sets out requirements on prescribed businesses using forest risk commodities in their UK commercial activities to tackle illegal deforestation in their

supply chains. ‘Forest risk commodities’ are defined in Schedule 17 as agricultural commodities whose production is associated with wide-scale conversion of forest.

1059 Subsection (1) of this section lays out what each part of Schedule 17 makes provision for. Part 1 of the Schedule makes provision on the use of forest risk commodities in commercial activity, Part 2 contains enforcement provisions, and Part 3 contains a requirement to review the effectiveness of the Schedule, and definitions of terms used in the Schedule.

1060 Subsection (2) specifies which regulations made under Schedule 17 are subject to the affirmative procedure. These are regulation specifying the commodities in scope, additional categories of relevant local law, regulated persons in scope, setting exemption thresholds, and details on enforcement provisions.

1061 Subsection (3) specifies which regulations made under Schedule 17 are subject to the negative procedure. These are details on the due diligence system and annual report, as well as information required when giving a notice for exemption to the enforcement authority.

 

 

 

 

 

 

 

Biodiversity gain as condition of planning permission

Part 1: Biodiversity gain condition

1729 Paragraph 1 inserts new section 90A into the Town and Country Planning Act 1990, which gives effect to new Schedule 7A.

1730 Paragraph 2 inserts new Schedule 7A.

 

New Schedule 7A Biodiversity gain in England Part 1: Overview and interpretation

1731 Paragraph 1 of Schedule 7A gives effect to paragraphs 2 to 11, which set out details of a new general condition to all planning permissions granted in England, subject to exceptions. The condition requires a biodiversity gain plan to be submitted and approved by the planning authority before development can lawfully commence. The biodiversity gain plan should contain an assessment of the value of natural habitats before development and after development, and ensure that at least a 10% net gain is achieved between the earlier and later values. The Town and Country Planning Act 1990 already allows for planning permission to be granted subject to condition(s). This “general condition” for biodiversity gain, which is mandatory for all planning permissions, is novel. Because the condition is deemed to have been granted, it exists in statute prior to the grant of planning permission. It may therefore be met at the time of granting planning permission where the planning authority also approves a biodiversity gain plan, meaning that the biodiversity net gain plan may not need to be submitted and approved in a separate process after planning permission has been granted. This could be used for straightforward planning applications where the relevant information is available upfront. The general condition will not apply to all development in all scenarios. Part 1 includes a power to detail these exceptions in secondary legislation.

1732 Paragraph 2 sets out the biodiversity gain objective and how it must be met. The objective is that the biodiversity value, expressed in biodiversity units, attributable to the development exceeds that which existed before development by at least 10%. Sub-paragraph (4) gives the Secretary of State a power to vary the percentage gain required.

1733 Paragraph 3 identifies the biodiversity metric as the approach which will be used to calculate the relative biodiversity value of any habitat. The metric uses habitats as a proxy for biodiversity value, which it measures and expresses in terms of “biodiversity units”.

1734 Paragraph 4 makes provision for the Secretary of State to publish the biodiversity metric, the tool which is used to measure the relative biodiversity value of habitats as relevant to this schedule. Sub-paragraphs (3) and (5) give the Secretary of State the power to update the biodiversity metric, and set out any arrangements for transition when the metric is updated so that developers and planning authorities are clear what is required where, for example, a planning application is under consideration on the date the updated version of the metric comes into effect. Updates to the metric will allow technical improvements, reflecting improved ecological understanding and further evaluation of the metric’s application in practice, to the metric to be incorporated into the approach. Updates will be infrequent to avoid creating unnecessary uncertainty for the planning system. The intention is to publish a timeline of planned updates. The provision also enables the Secretary of State to make transitional provision where the metric is revised and republished. Sub-paragraph (6) requires the

biodiversity metric published for mandatory biodiversity net gain, which will be used for measuring the biodiversity value of land and enhancements, to be laid before Parliament. This will ensure that the document is clearly published and is available for scrutiny.

1735 Paragraph 5 defines the date on which the pre-development biodiversity value of land should be taken to be measured. Sub-paragraph (3) enables a developer and a local planning authority to agree another date where more appropriate than the default set out in sub-paragraph (2).

Sub-paragraph (4) makes provision for circumstances in which the planning authority is aware that there has been degradation of habitats in advance of development.

1736 Paragraph 6 sets out that the pre-development biodiversity value of on-site habitats is to be taken as the value before certain activities took place. These activities must have been carried out without planning permission, or without an alternative permission specified by the Secretary of State in regulations, on or after 15 October 2019. The activities must also have reduced the biodiversity value of habitats on the site below what it would otherwise have been at the time of planning application or planning permission.

1737 Paragraph 7 defines the pre-development biodiversity value in the event that a site registered as a “biodiversity gain site” is developed. It sets out that the pre-development value of the land should be taken to be the enhanced value of the registered site, regardless of whether or not the registered biodiversity enhancement has in fact been delivered successfully. This will mean that the development of a registered compensation site, whilst unlikely and undesirable, should not undermine the overall biodiversity gain outcome.

1738 Paragraph 8 defines the post-development biodiversity value of habitat on the development site as the projected value of habitats on the development site. The value needs to be projected because a planning authority will need to use this figure before development starts to determine whether the development will achieve the net gain objective. In practice, the post- development biodiversity value of habitats on the development site will be determined by applying the metric to the developer’s plan for the development site as detailed in the biodiversity gain plan.

1739 Paragraph 9 stipulates that significant increases in onsite biodiversity value can only be considered part of the post-development biodiversity value if they are secured through a suitable mechanism and will be maintained for at least 30 years after the completion of development. This paragraph also allows the Secretary of State to change the minimum time for which biodiversity gains must be secured. This minimum time applies to on-site biodiversity value increases which are considered significant and therefore secured (through a planning obligation, conservation covenant or planning condition). This may not be changed to a period of less than 30 years, which is the initial duration specified in the Act’s provisions.

1740 Paragraph 10 defines what can be counted towards “registered offsite biodiversity gain” in relation to a development. This relates to gain achieved on land other than the development site. Where a developer makes an agreement with a third party to do so, or enters into an agreement to do so themselves, this gain can be allocated to the development to be counted towards meeting the biodiversity objective. The biodiversity gain and its allocation to a development must be recorded on the biodiversity gains site register.

1741 Paragraph 11 makes reference to biodiversity credits, as described in section 101 of the current Act.

1742 Paragraph 12 defines the terms “developer”, “onsite habitat” and “planning authority” as they are applied in the new Schedule 7A. Sub-paragraph (2) states that references to planning permission should be taken to include deemed planning permission, which is granted by government departments to certain development. This includes development approved under the Electricity Act 1989 and the Transport and Works Act 1989.

Part 2: Condition of planning permission relating to biodiversity gain

1743 Paragraph 13 sets out and applies the general condition to all planning permissions granted for development in England, subject to exceptions in paragraphs 17 and 18 and further application beyond the standard definition of planning permission in paragraph 19.

1744 Paragraph 13 contains the wording of the general condition itself, which requires that a developer wishing to commence a development approved by planning permission will first need to submit a biodiversity gain plan to the planning authority, as defined in paragraph 12, and obtain the planning authority’s approval of this plan.

1745 Paragraph 14 establishes what information a biodiversity gain plan must include to satisfy the general condition. A biodiversity gain plan must specify all the information necessary for a planning authority to be able to approve the plan under paragraph 15. This includes information about the biodiversity value of habitats before and after development and steps taken to minimise harm to habitats during development.

1746 The Secretary of State may specify other matters to be included in the plan under sub- paragraph (2)(f). Sub-paragraph (3) provides for the Secretary of State to specify the procedure which must be followed when submitting a gain plan.

1747 Paragraph 15 requires planning authorities to approve a biodiversity gain plan if, and only if, key information in the biodiversity gain plan is accurate and the biodiversity gain objective is met. Authorities need to be satisfied with the information provided, including the value of onsite and offsite habitat gains and losses associated with the development. If the authority decides they are not satisfied, development would not be able to proceed lawfully unless the developer successfully appeals this decision.

1748 Paragraph 16 gives the Secretary of State the power to specify procedures to follow and factors to be taken into account when approving a biodiversity gain plan, and in relation to appeals against decisions.

1749 Paragraph 17 exempts all development granted planning permission by the Secretary of State using a development order, or under provisions for urgent Crown development, from the application of the general condition. This includes development granted permission by the General Permitted Development Order, which allows various types of development to proceed without requiring a planning application. Paragraph 17 also gives the Secretary of State the power to exempt development from the requirement to apply the general condition.

1750 A net gain in biodiversity cannot be achieved on areas of development which result in the loss of irreplaceable habitat, such as ancient woodland. In recognition of this paragraph 18 allows the Secretary of State to make regulations that modify or exclude the application of the general condition to irreplaceable habitat. Existing strong planning policy protections for irreplaceable habitat will remain, and will not be replaced or in any way undermined by the biodiversity gain requirement or any regulations to be made in relation to irreplaceable habitat. Sub-paragraph

(2) specifies that, where development does impact irreplaceable habitats, regulations must require measures to be taken to minimise the negative impacts of this development on those habitats, and that those measures should be agreed with the planning authority where they are not made by the planning authority in the first place. Sub-paragraph (3) allows regulations to confer powers and duties on Natural England in relation to giving guidance on the treatment of irreplaceable habitat in development.

1751 Whilst it is generally agreed in practice that development cannot claim biodiversity net gain in cases when development results in land take from statutory protected sites (such as Sites of Special Scientific Interest, Special Protection Areas, Special Areas of Conservation, and Ramsar sites), development on such sites is not specifically exempted from the net gain requirement.

The biodiversity metric does not address impacts on species, recognise the significance of site designations, or take account of indirect impacts, cumulative impacts or in-combination impacts. In recognition of these limitations, the biodiversity net gain requirement for development on such sites is additional to any existing legal or policy requirements for statutory protected areas and their features, including restoration and conservation of designated features and the achievement of favourable conservation status and favourable condition. These requirements will need to be dealt with separately by the developer and planning authority.

1752 Paragraph 19 allows the Secretary of State to modify the application of this Part to permissions for phased development or developments where subsequent approval has the effect of phasing development. Sub-paragraph (2) sets out that regulations may include provisions for biodiversity gain conditions to be included in the grant of planning permissions for these types of permission.

1753 Paragraph 20 gives the Secretary of State powers to modify or exclude the application of this Part to planning permissions for development already carried out, or planning permissions granted for the alteration or removal of buildings or works by any order requiring discontinuance of any use of land.

1754 Paragraph 21 makes provision for the Secretary of State to make provision as to the application of this Part of the Schedule to planning permission granted in relation to a purchase notice and the successful appeal of a planning enforcement notice.

Part 2: Consequential amendments.

1755 Paragraph 3 details the consequential amendments to the Town and Country Planning Act 1990.

Biodiversity gain in nationally significant infrastructure projects

1756 Lords Amendment 93 would introduce a new schedule that sets out the biodiversity net gain requirement for Nationally Significant Infrastructure Projects (NSIPs).

1757 Paragraphs 1 to 4 amend sections 104 and 105 of the Planning Act 2008. Section 104 of the Planning Act relates to those NSIPs for which a national policy statement has effect, and section 105 relates to those for which a national policy statement does not have effect.

1758 For all NSIP applications decided under section 104, paragraph 3 requires the Secretary of State (SoS) to be satisfied that the biodiversity gain objective contained in any NSIP’s statement is met, in order for consent to be granted.

1759 Paragraph 4 requires, for applications decided under section 105, the SoS to be similarly satisfied that the biodiversity gain objective set out in a biodiversity gain statement is met before granting an application.

1760 Paragraph 5 inserts Schedule 2A into the Planning Act 2008. Schedule 2A Section 103: Biodiversity Gain, paragraph 1 outlines that this amendment would only apply to NSIPs that are in England and are not ‘excluded developments’, which are to be defined by regulations made by the SoS.

1761 Paragraph 2 outlines how the biodiversity gain objective is to be set for NSIPs. It states that this is to be done through a ‘biodiversity gain statement’. These policy statements will define the biodiversity gain objective and prescribe the processes through which biodiversity gains may be calculated, demonstrated and verified.

1762 Paragraph 3 defines a biodiversity gain objective as an objective that development increases its attributed biodiversity value relative to the on-site habitat value before development. This increase must be at least 10%, though the SoS may amend this percentage temporarily or indefinitely by regulations.

1763 Paragraph 4 says that a biodiversity gain statement may stipulate the method of calculating biodiversity value and specified that options include the metric published for development under the Town and Country Planning Act, a bespoke biodiversity metric or another biodiversity metric. The stipulated biodiversity metric must be published in an appropriate manner and, unless already laid before parliament in accordance with Town and Country Planning Act biodiversity gain provisions, must be laid before parliament.

1764 Paragraph 5 says that a biodiversity gain statement may set out how the on-site habitat is defined and the date (for example, before any habitat clearance for development commences) for which a habitat’s value must be assessed.

1765 Sub-paragraph 5(2) allows for a different pre-development date to be specified if activities on the land before making the development consent order application has resulted in a reduction in the biodiversity value of the on-site habitat (for example, where habitats have been degraded prior to development consent).

1766 Sub-paragraph 5(3) states that the projected biodiversity value of a registered biodiversity gain site should be taken as the pre-development biodiversity value where development takes place on an existing biodiversity gain site.

1767 Paragraph 6 says that a biodiversity gain statement may specify what the biodiversity value for the relevant development consists of and how biodiversity value, when secured for an appropriate duration, may be allocated to a development. This could include the post- development biodiversity value of the on-site habitat, the biodiversity value of any off-site biodiversity gain allocated to the development and the biodiversity value of any biodiversity credits purchased for the development. An increase in biodiversity value either on-site or off- site can only be taken into account if any habitat enhancement contributing to that biodiversity value increase is maintained for a period specified in the statement, and if the maintenance of that habitat enhancement is secured in a way specified in the statement.

1768 Paragraph 7 relates to development on irreplaceable habitats. In recognition of the position set out in paragraph 1682 of these explanatory notes for the Environment Act, a biodiversity gain statement may disapply the biodiversity gain objective, or components of the objective for such development. It may also set requirements to minimise any adverse effects of the development on irreplaceable habitats.

1769 Paragraph 8 states that the biodiversity gain statement must set out the evidence, likely to be specified in terms of documents types including a completed biodiversity metric, that must be provided for the biodiversity objective to be deemed met.

1770 For developments where there are existing national policy statements, paragraph 9 says that, following commencement of the schedule, the SoS must amend the statement when it is next reviewed so as to include a biodiversity gain statement. In the time between the schedule being commenced and a review of a national policy statement, a separate ‘biodiversity gain statement’ may be issued which would have the same effect as a statement integrated within a national policy statement. This must be laid before Parliament and be published in a manner deemed appropriate by the Secretary of State. This separate biodiversity gain statement would then be revoked when the national policy statement is reviewed and the biodiversity gain content is integrated into the nationally policy statement. If an existing national policy statement relating to a development is withdrawn, any separate biodiversity gain statement relating to that development would come into effect.

1771 Paragraph 10 states that a biodiversity gain statement may be produced for development which is not covered by a national policy statement. This would also be subject to requirements for consultation, laying before parliament and publication in an appropriate manner. This biodiversity gain statement would then be incorporated into any later national policy statement published for that type of development.

1772 Paragraph 11 gives powers to the SoS to apply, with or without modifications, this schedule to developments at sea within England.

1773 Part 2 sets out supporting amendments to the Planning Act 2008 which enable mechanisms such as requirements (similar to conditions applied to Town and Country Planning Act permissions) and document requirements to be set or adapted in relation to the biodiversity gain objective.