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  • Overview

    It is clear that in recent years there has been a general shift in public consciousness about the impact we have on the environment and a clear desire to mitigate this impact in our daily lives. For this reason, we are seeing more and more eco-friendly developments which no doubt arise both from greater statutory requirements on developments to be more eco-friendly and incentives for developers to attract the eco-conscious buyer. This article reviews current and proposed legislation and common practices aimed at making developments more eco-friendly, focusing on promoting biodiversity.
    Eco-friendly developments – Biodiversity 

    The government is keen for all development to improve the biodiversity of a site. But what does that actually mean? What measures are the government taking and what will the impact be on developers? 

    What does Biodiversity mean? 

    Biodiversity is the number and type of plants, animals, fungi and bacteria in any area. The government wishes to ensure that, through its planning policy, existing habitats are preserved during the construction phase and following completion of the development, the habitats are improved and enhanced.  

    What measures are the government taking? 

    Currently, the National Planning Policy Framework (NPPF) already requires local planning authorities to encourage developers to incorporate biodiversity improvements as part of their development. This was not without some success as it became increasingly common to see environmentally focused pre-planning conditions such as retaining as much public open space as possible or planting new shrubs and trees to replace ones damaged during construction. This was, however, not a standard requirement and has only been implemented by some local authorities. 

    The government is therefore taking this one step further by legislating that all developments (whatever their size) must create a net gain in biodiversity of 10%. This is set out in the Environment Act (the Act) which received royal assent on 9 November 2021 and is likely to be implemented law by 2023. The government has said, “This is a significant opportunity to ensure that developments provide lasting benefits for wildlife and to people’s ability to experience nature where they live and work”. Although mandatory (and critics may say somewhat onerous), these measures should help increase the saleability of plots to those eco-conscious buyers.

    Under the Act, a developer must submit a plan to the local planning authority detailing the current and proposed overall biodiversity of the site and this must show an increase of 10% calculated using the government’s own biodiversity metric. This will need to be sent prior to development commencing (although it is often advised to have this dealt with at the pre-planning stage).  

    A lot of the details are still being finalised but there are a few initial provisions: 

    •    The habitats can be delivered on-site, off site or via purchasing statutory biodiversity credits from the government (the details of which are being finalised).
    •    Habitats must be secured for at least 30 years. This is a step away from most of the currently used management plans which average between 5-10 years. Practically speaking, where the habitat is “on-site”, we suspect this would be included in a Management Company’s obligations following the completion of the dwellings with such habitats being considered “common external parts”. Natural England is also developing a management plan and reporting template for this purpose. 
    •    Natural England are introducing a net gains site register which includes information on the site which is purporting to deliver the biodiversity net gains. It will include information on who owns the site – this is to prevent the same site being claimed by developers as the means of delivering their 10% biodiversity net gain across multiple sites. 

    There are of course exceptions to the rule. The following types of developments will not need to show a net biodiversity gain:

    •    Permitted developments;
    •    Certain Brownfield sites;
    •    Developments prescribed by the Secretary of State (including certain Crown developments);
    •    Nationally significant infrastructure; 
    •    Marine developments; and 
    •    Irreplaceable developments such as ancient woodlands, sand dunes and salt marches. 

    What will the impact be on developers?

    Developers do have a large scope as to how they can increase the biodiversity of a site. As mentioned above, this does not actually have to be “on site”. This can be by ensuring green open spaces are maintained with the introduction of new species for a medium sized development or by building nature reserves on or around larger housing developments.  

    If the nature of the site will make it difficult to implement these plans then developers can pursue off-site compensations which should be addressed at the beginning of the planning process.

    In terms of key issues for developers, it is clear that one will be the proposals and plans not meeting the required standard. The plans submitted must be clear, using the government’s system to calculate the net gain. From an initial review, the metric calculations are not simple and a specialist consultant should be employed to draft the plan. This should save time in the pre-planning/pre-development process. 

    A possible delayed impact on developers will be the effect on the pool of potential purchasers. The increased costs to the developer will be passed on to the consumer, which will inevitably reduce market availability. Whilst the eco-conscious buyer will be keen to invest in a new property with such credentials, developers must be careful not to exclude or discourage the lower end of the market. 

    Conclusion 

    The Act is still being finalised with a lot of the detail to follow in secondary legislation but the transitional period should allow developers to consider how this might impact their intentions to purchase pre-planning sites. Some private practice planners recommend that showing a commitment to bio-diversity (even when not required) will make the application more compelling to the local authority and will make the development more attractive to eco-conscious consumers. 

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