Biodiversity net gain for developers – how to get ahead of secondary legislation

Planning

The National Planning Policy Framework already sets out a mitigation hierarchy: avoidance, minimisation, onsite restoration, offset and if these criteria cannot be met then technically planning should be refused.

Following the introduction of the Environment Act 2021, from November* 2023 the need to demonstrate at least a 10% biodiversity net gain (either on or off site) over and above a sites pre-development biodiversity value is set to become mandatory and apply to the majority of planning applications in England,

In addition, when the new Schedule 7A of the Town and Country Planning Act 1990 comes into force paragraph 13 sets to enforce that a standard pre-commencement condition is applied to all permissions granted in England, preventing lawful commencement of development until a ‘biodiversity gain plan’ is submitted to and approved by the Local Planning Authority.

What do developers need to do to get ahead?

Whilst the mandatory requirement is still some way away, now is the time for developers to apply best practice, and ensure biodiversity is an important and integral consideration when buying land and planning their developments, particularly in the case of greenfield development.

Although a finalised gain plan is not required at planning application stage, any development will need to provide an overview of its 10% biodiversity gain plan at application stage. At this point, it will need to be established if a net gain can be achieved on or off site, and thus, it is advantageous for developers to have an idea about the implications of any Biodiversity Impact Assessment (and any off site offsetting costs) before agreeing a purchase price for land and starting to design out sites.

In addition, it may be beneficial to submit the gain plan in full at the application stage, the advantage not only being that once planning is approved the net gain condition will be discharged and development can begin, but also it may assist with the planning process and the level of support that can be achieved for any development.

At planning application stage: Include details of the steps taken to minimise effects on biodiversity and how it will be enhanced. The consultation sets out the level of core information that is required at this stage including:

The pre-development biodiversity value

The proposed approach to enhancing biodiversity on-site

Any proposed off-site biodiversity enhancements (including the use of statutory credits) that have been planned or arranged for the development

For outline planning applications, it is also likely that additional information will be required in relation to the overall net gain strategy for the whole site and plans for phased delivery (where applicable).

You’ll also need to use the biodiversity metric 3.0 for calculating any impact – more detail can be found about this metric in Natural England’s User Guide.

At pre commencement planning condition stage: It is at this point a full gain plan must be submitted to and approved by the Local Planning Authority setting out the ‘detail’ for delivering that proposed at application stage.

The consultation sets out that the Local Planning Authority will only approve the biodiversity gain plan once they are satisfied that:

The biodiversity gain plan and completed biodiversity metric (submitted as the completed calculator document, not a ‘snapshot’ or summary) show a measurable net gain of at least 10% across all unit types (area-based, and where relevant, linear, and riverine habitats), having regard to policy on matters such as additionality

The information, including pre-development and post-development biodiversity values, presented in the biodiversity gain plan is complete and meets the statutory requirements

Any claimed gains (both on-site and off-site) are appropriately secured and allocated, including the point in the development process that these gains are to be delivered and a proportionate description of how enhancements will be managed and monitored

Some of the practicalities in terms of submission, timeframes and appeals process is yet to be fully published by the Secretary of State and there is speculation around exemptions, including likely exemptions for householder applications, change of use and self-build housing.

For more information about how the Environment Act and biodiversity net gain will affect your developments, contact Jenny Keen or another member of the planning team.

 

*Intended date following the two-year transition period outlined in the Defra’s January 2022 consultation

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Jenny is a Chartered Member of the Royal Town Planning Institute (RTPI) with substantial experience in the residential, retail and commercial planning fields.

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Biodiversity Net Gain – opportunities for landowners, obligations for developers

With the ink still wet on some of the policies and agreements to come out of COP26, sustainable development is high on the political agenda.

Improving biodiversity is a major issue for landowners, developers and planning authorities and biodiversity net gain is a method utilised to improve a sites value – the higher the biodiversity net gain, the potentially higher the value, and who doesn’t want that

What is meant by biodiversity?

The biodiversity of an area is the variety of plant and animal life in a particular habitat. A high level of biodiversity is considered to be desirable and important.

What is biodiversity net gain and what does this mean for Developers?

Biodiversity net gain (BNG) sits within the Environment Act 2021 which received Royal Assent in November 2021. The act requires, amongst other things, that all development schemes in England must deliver a mandatory minimum 10% biodiversity net gain which must be maintained for a period of at least 30 years. This is now a legal requirement.

Biodiversity Net Gain follows a mitigation hierarchy – four steps designed to result in a win- win situation. Wins for the environment and wins for the developer.

  1. Avoidance – avoiding any impact completely such as changing the location of development

  2. Minimisation – reducing the time, extent, impact, intensity of the development

  3. Onsite restoration – measures taken to restore the habitat involved

  4. Offset - measures taken to compensate for the adverse impacts after the previous three have been explored in full

What does this mean for landowners?

By 2028 the farm subsidy, known as the Basic Payment Scheme will be eradicated and in its place (to a degree) the new Environmental Land Management Scheme (ELMS), set under the Agriculture Act 2020, will be fully integrated. The ELMS is based on the philosophy of “public money for public goods”, and biodiversity (along with all natural capital considerations) will play a huge role within the various schemes planned.

What we don’t know at this stage is how the private sector contracts between developers and landowners will sit with the ELMS and whether there will be the ability to benefit from both. (‘Stacking’ is the issue of whether the same land can ‘stack’ one payment upon another).

It would appear that there is opportunity for landowners and farmers to take advantage of developers offsetting their BNG requirements, by adding a new revenue stream for any farm business or landed estate, which may be more lucrative than what the ELMS have to offer. However, a word of caution. All businesses will need to consider their own carbon footprint before embarking on entering into any offset BNG contracts, to ensure they can reach their own net zero carbon target.

Furthermore, as this is still a new concept, values need to be carefully considered. With land needing to be set aside for BNG for a minimum of 30 years (with the Secretary of State having powers to increase this as it sees fit), it might have the negative effect of reducing the capital value of the land. This needs to be compensated by the offset contracts between landowners and developers. Tax planning for future generations also needs to be considered for landowners.

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Brian is a Town Planner and chartered Member of the Royal Town Planning Institute with in excess of 15 years of experience accrued in local government and the private sector.

Brian acts for a broad range of clients including individuals and businesses who are in a number of sectors across the UK.

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Mixed-use developments: what does the future hold?

What is the future of mixed-use developments?

A mixed-use development traditionally contains two or more major use types, such as residential, commercial or office space. In recent years, these developments had been growing in popularity, providing a boost to both town and city centres.

However, the pandemic has shifted attitudes towards both housing and retail, so how could this impact mixed-use developments in the future?

Changes to design

The pandemic will undoubtedly change the way mixed-use spaces are designed. The concept that people’s dwellings are also their workspaces is a shift from the established norm and this should have an impact on both house design and the environment in which people live.

People are discovering how remote working can benefit them in the ‘new normal’. It offers flexibility and, in many cases, people feel like they are more productive. However, there is a risk of social isolation and managing mental health has become increasingly important. Mixed-use spaces have a significant role to play in responding to changing work and life trends.

Shifting requirements

People’s physical and mental wellbeing should be placed at the forefront of mixed-use developments. It’s important that they enable people to feel connected to society and a community, as well as to live healthier, happier lives. A considered approach to mixed-use in response to emerging trends following the pandemic can provide that.

The specific elements of a mixed-use development need to be carefully considered and should be bespoke to that community’s needs and aspirations. Key questions might be: what is the anchor use and what other uses can support it?

The pandemic has led to reduced transport use across the board. People would likely welcome this change long-term if things such as better public amenities, local shops and high-quality open spaces were ‘on their doorstep’ and travelling wasn’t such a necessity.

Accelerating the inevitable

The pandemic has simply accelerated changes that were already coming. Innovative advances in technology and communications have allowed remote working to succeed, and businesses to survive the pandemic.

If COVID-19 had hit 10 years ago, it would have been a very different story and companies would have struggled to adapt and operate.

Online retail was already an established feature of people’s lives pre-COVID. Now, e-commerce is even more popular. The question for mixed-use development is around how it can provide a retail offering that works in tandem with e-commerce and strikes a balance between access to local shops and national brands.

Hospitality and leisure businesses will feature in mixed-use developments more prominently too. Many restaurants, bars, and pubs have been hit particularly hard by the pandemic and have been forced to adapt as well. In terms of a mixed-use environment, factors such as outdoor seating have led to improved shared spaces, fostering a stronger connection between customers and the surrounding public realm. In turn, this helps strengthen the connection between people and the community in which they live; a key goal of mixed-use development.

The pandemic may have altered the priorities of both people and businesses, but ultimately these societal changes suit the aims of mixed-use developments. By taking into consideration the needs of residents, these developments could continue to boom in popularity in the future.

Alex recently spoke to Design & Build Review about the role that mixed-use developments will play in responding to changing work and life trends - see more here.

To learn more, get in touch with the team at our specialist planning consultancy, Marrons Planning.

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Building for a Healthy Life: putting wellbeing at the forefront of housing

Building for a Healthy Life: putting wellbeing at the forefront of housing

Lockdown has highlighted that the UK housing crisis isn't purely about quantity, it's also about quality. A form of revolution is needed, with developers adding residents' wellbeing to their priority lists, as well as speed.

Luckily, the recent launch of 'Building for a Healthy Life' (BHL) could be the answer.

Read the Building for a Healthier life toolkit publication here.

The impact of unsuitable housing

Well-lit private spaces and nearby green areas are no longer added extras, they are necessities. For the many people who live in urban areas with limited access to these, the pandemic has had a negative impact on their mental health, having stopped them from being able to escape their four walls.

Space saving is often the main focus for city developments, ensuring maximum capacity in a minimal area. However, this approach doesn't consider wellbeing and instead relies on residents being able to leave to meet their wider basic needs.

This one-size-fits all approach to the housing crisis is not an effective solution, and it's time to try something new.

What is Building for a Healthier Life (BHL)?

Backed by Homes England, BHL has been created to replace 'Building for Life 12' (Bfl 12). Simply put, the goal of these new guidelines is to encourage housing developers to weave health and wellbeing into their plans.

BHL's predecessor, BfL 12, was made up of 12 set questions designed to help assess the quality of housing schemes. Aspects such as facilities, tenure types and private spaces were covered, but many used it as a quick tick-box system, rather than truly considering how they could improve their sites.

However, BHL appears to have moved away from this question and answer process.

'How-to' guides for healthy spaces

The purpose of BHL is for architects and planners to submit evidence that shows exactly how wellbeing elements are to be implemented.

By providing visual aids that act as "how to" guides for healthy spaces, BHL enables developers to pick and choose the design cues that they feel would benefit their own housing schemes.

Wellbeing considerations

There is one thing that BHL has taken from BfL 12, and that is the idea of having 12 main considerations for developers. These have been split into three categories:

  • Integrated neighbourhoods;
  • Distinctive places; and
  • Streets for all.

Individual elements include 'homes for everyone', 'well defined streets and spaces' and 'green and blue infrastructure'.

Each element should be taken in context with the development, rather than followed as a checklist, to ensure the result will fully benefit all residents.

Building long-term housing is essential

In future, decision makers must ensure that wellbeing considerations are included in development plans wherever possible. Although speed is still necessary to tackle the housing crisis, homes built for the long-term must become part of the solution. Hopefully, BHL and the pandemic will lead to more developers building with health in mind.

Helping you to achieve the best outcome

If you're in the early stages of a development, we can help you to utilise the toolkit. Our team of specialist town and country planners will guide you through the process and work alongside you to demonstrate to the decision-maker why your scheme has been designed in a specific manner.

Contact us

For advice and support on how you can use BHL to your advantage, or any other planning query, contact Sachin Parmar  and Brian Mullin in our planning consultancy team Marrons Planning.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director's responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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New permitted development rights | Additional storeys can be built on top of existing blocks of flats

New permitted development rights | Additional storeys can be built on top of existing blocks of flats

From 1 August 2020, a new permitted development right is being introduced, allowing an additional one or two storeys to be constructed on top of existing blocks of flats.

This is alongside engineering operations, replacement or installation of additional plant, construction of safe access and egress and construction of ancillary facilities, where necessary.    

The 'upward extension' measure is being introduced with the aim of increasing housing delivery across the country in a bid to protect 'greenfield' land.  

What are permitted development rights? 

Permitted development rights allow you to make certain changes to a building without needing to apply for planning permission.  

Are there any restrictions? 

The permitted development right is limited in the buildings in which it can be applied to. The right will only apply to blocks of flats that: 

  • are detached; 
  • are at least 3 storeys in heightand 
  • were constructed between 1 July 1948 and 5 March 2018. 

It is important to note that the right does not apply to listed buildings, scheduled monuments or buildings within the curtilage of such. Nor does it apply to buildings within Conservation Areas, National Parks and the Broads, areas of outstanding natural beauty, or sites of special scientific interest.  

If buildings do fulfil all of the criteria above, then an 'upward extension' can be built under permitted development. There are, however, still restrictions on what can be built out.  

A full copy of the legislation can be found here. 

To summarise, the restrictions are as follows: 

  • The extension has to be constructed on the principal part of the building; 
  • The extension cannot exceed 30 metres in height;
  • The overall roof height of the extension cannot be more than seven metres higher than the highest part of the existing roof; and 
  • The internal ceiling height of each storey cannot exceed three metres, OR more than the floor to ceiling height of any of the existing storeys (whichever is the lesser height). 

Prior approval 

 An application for prior approval will have to be made to the Council, accompanied by comprehensive floor plans and elevations. Submitting these details will satisfy the council that the design of the proposals is acceptable, in addition to adequate light being achievable. The council will then have eight weeks to determine the prior approval application. 

Contact us

For advice and support on the new 'upward extension' permitted development rights, or any other planning query, contactBrian Mullin orLizzie Beresfordin our planning consultancy team,Marrons Planning. 

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director's responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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COVID-19 - Permitted development rights

COVID-19 - Permitted development rights

Recent amendments have been made to planning legislation by the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 No.412 to allow emergency development by a local authority or health service body. This came into force on 9 April 2020.

The legislation defines a 'health service body' to include NHS Trusts and NHS Foundation Trusts. There are geographical, spatial and height restrictions where development is not permitted, but it otherwise allows NHS Trusts to undertake development for the purposes of preventing an emergency, reducing/controlling/mitigating the effects of an emergency or taking other action in connection with an emergency. For example, providing testing tents, new buildings and enlarging existing buildings in the Covid-19 crisis.

The right is subject to a condition that any operational development is removed and the land restored within 12 months from the permitted use ceasing.

A full copy of the legislation can be found here.

When do the permitted development rights not apply?

  • If any part of the development is on land, which is a military explosive storage area, a site of special scientific Interest (SSSI) or contains a scheduled monument.
  • If any part of the development would be carried out within five metres of any boundary of a dwellinghouse.
  • If any part of the new building is within ten metres of any boundary and the height exceeds six metres. The same height restrictions also apply to additions or enlargements to existing buildings.
  • If the heights of any new buildings exceed the height of the highest part of the roof of the original building, or a height of 18 metres, whichever is greater. The same height restrictions also apply to additions or enlargements to existing buildings - If any moveable structure, works, plant or machinery required temporarily are located in a position within ten metres of the curtilage of a dwellinghouse, or within five metres of the site boundary.

It is important to remember that any development close to the site boundary, or close to residential dwellings, will trigger the requirement for a planning application.

NHS Trusts should be made aware that the Local Planning Authority must be notified following commencement of any permitted development.

Contact us
For advice and support to carry out development for the purpose of tackling the COVID-19 crisis, or any other planning query, contact Brian Mullin or Sachin Parmar in our planning consultancy team, Marrons Planning.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director's responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

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