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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Guide

Use Classes | Change of Town and Country Planning (Use Classes) Order

Use Classes | Change of Town and Country Planning (Use Classes) Order

Last week the government announced significant changes to the Town and Country Planning (Use Classes) Order, which could radically alter the appearance of towns and cities across the country.

The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 proposes the amalgamation of a number of existing use classes into new wider use classes.

Our handy one-page guide outlines the changes to the use classes order in England.

This is significant because, in accordance with the Town and Country Planning Act 1990, planning permission is only required for a "material change of use" and as such, changes of use which fall within the same overarching use class will be permitted without the need for an express grant of planning permission.

What this will mean is that local planning authorities will not be able to control the changing nature of commercial buildings, with owners and occupiers having far greater flexibility in what they choose to do with their units.

Read our blog on how redundant commercial buildings can be repurposed into new homes without planning permission.

The broader categories will also potentially allow for greater subdivision of premises, with different users occupying the same space all operating under the umbrella of an overarching use class.

What are the changes?

The changes, which come in to force on 1 September 2020, will create two new uses classes:

  • Class E - commercial, business and service; and
  • Class F

    • Class F.1 (learning and non-residential institutions); and
    • Class F.2 (local community).

It also moves some uses that were previously covered by the use classes order (and which benefitted from certain permitted changes) into the list of uses which cannot be included in a specified class.

Class E will comprise the previous shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1), together with uses such as gyms, nurseries and health centres (D1 and D2).

The new Learning and non-residential institutions class (F1) will include former D1 uses, which are more likely to involve buildings in wider public use such as school, libraries and art galleries.

Local community uses (Class F2) will include former D2 uses, which provide for group activities of a physical nature such as swimming pools, skating rinks and areas for outdoor sports.  It also includes smaller shops serving local communities.

Residential uses (Class C), general industrial (B2) and storage and distribution (B8) remain unchanged

The previous separate categories for drinking establishments (A4) and hot food takeaways (A5) are removed, and those uses will thereafter be classified as sui generis.  The same will also apply to cinemas, concert, dance and bingo halls (which were previously within class D2).

Transitional arrangements

As of 1 September, there will be some transitional arrangements in place to allow for the use of historic permitted changes, however, these will only be in place until 31 July 2021.  The same is true of relevant Article 4 directions.

Take action now

Our handy one-page guide sets out the planned changes to the use of classes from 1 September 2020. If you are looking at taking on, or converting, a building you should double check the new regulations, as it may be that the new proposals make it easier (or in some cases harder) to change the existing use.  Equally, when considering letting properties, landlords will want to have regard to the types of uses they are willing to accept in their buildings.

Contact us

For advice and support on how these changes may affect your developments, or any other legal planning query, contact Paul Wakefield in our planning team.

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

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New planning law | Redundant commercial buildings can be repurposed into new homes without planning permission

New planning law | Redundant commercial buildings can be repurposed into new homes without planning permission

"Build, build, build" was the phrase used by Boris Johnson last month as reforms were promised to get the nation building more "fantastic new homes on brownfield sites'".

However, before you can 'build, build, build', you need to get planning permission - and that is still too often a hurdle which prevents the delivery of much needed new homes.

What are the proposed changes to planning laws?

Councils have often rolled out planning policies protecting 'employment land' from housing, even when it is no longer commercially viable.  They've also often sought to apply the same burdensome Section 106 obligations and standards to sites where viability is marginal.

However, such restrictions are to be swept away as the Government are stepping in with the promise of allowing the demolition and rebuilding of vacant and redundant commercial buildings for new homes without requiring planning permission.

Well, almost…. There is still a 'prior approval process' to be obtained from the Councils.  Issues such as design, noise, traffic, parking, and amenity will therefore still need to be addressed as the Government wish to achieve quality and avoid the criticisms of its approach to allowing conversions of commercial buildings under this approach.

But critically, buildings must have been "entirely vacant for at least six months prior to the date of the application for prior approval", and built before 1 January 1990.  In addition, the new building cannot be larger than the footprint of the existing building and cannot exceed a maximum footprint of 1,000 square metres.

That clearly reduces the effectiveness of this option for some sites, however it may still provide a useful 'fall-back' argument with the Council and could enable a phased approach to site redevelopment.

Contact us
For advice and support on how you can use this new measure to your advantage, or any other planning query, contact Gary Stephens 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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Guides & Advice

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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