Locking In Land, By Unlocking Biodiversity

A Legal Framework for Net Gain’s 30-Year Horizon.

Biodiversity net gain (BNG) policy has emerged as an innovative approach to counteract nature’s alarming decline. BNG is a development or land management approach that seeks to create habitat or enhance the natural environment and leave it in a better state than before development. It also aims to protect and enhance biodiversity, which has been declining in the UK due to habitat loss, pollution, and other factors.

The BNG concept draws on the “mitigation hierarchy” used in environmental policy for decades. The goal of the mitigation hierarchy in BNG is to drive development decisions that work through each sequential step, seeking first to avoid impacts completely. If avoidance is impossible, minimization of harm is next. Onsite rehabilitation follows before considering offsite offsetting. Adhering to this priority order ensures biodiversity is conserved as much as possible before relying on offsets.


Building Toward 10%: New Era for Nature as UK Adopts Biodiversity Net Gain.

Starting January 2024, BNG will become mandatory for most developments in the UK under the Town and Country Planning Act, as set out in the Environment Act 2021. The policy states that developers are required to achieve a minimum of 10% net gain in biodiversity, though this amount will vary across local planning authorities (LPA), choosing to apply a legally enforceable higher uplift. This landmark legislation comes in response to alarming biodiversity trends, including a 41% decline in all UK species populations since the 1970s, as documented in the State of Nature report.

Following the BNG process, developers should first seek on-site solutions, such as improving existing habitats within the project boundary. If unable to fully meet targets on-location, off-site units can be secured. As a last resort, purchasing government biodiversity credits can help developers achieve mandated gain thresholds.

For example, a hotel developer could create a green roof on-site, restore a meadow off-site on their corporate campus, and purchase government credits for a municipal park project. Together these units and credits, offer multiple pathways aligned with net gain goals, directing resources to maximize ecological value.

This evolving biodiversity approach represents a major shift for both builders and local authorities. As net gain transitions from best practice to legal necessity, developers must adapt their models, while councils integrate biodiversity earlier into planning. Though implementation poses challenges, biodiversity net gain offers huge potential for ecological revival in developed spaces. If thoughtfully executed, net gain could spur flourishing natural habitats across regions to counter biodiversity decline.


Beyond Compliance: Uncovering the Wider Benefits of Biodiversity Net Gain.

For most developments affected by the Act, BNG is another new obligation to satisfy in order to gain planning consent, and benefits are secondary to their efforts in compliance with the Act.

The main benefits of BNG amass to society and nature at large, but developers can benefit if they can find ways to design with nature and use BNG to add, for example, flood resilience, shading, healthy living, and more pleasant surroundings to their development.

  • Environmental Benefits

BNG enables nature-based solutions that restore critical habitats and uphold ecological balances. For example, green roofs mitigate urban heat islands while creating pollinator habitats.

  • Social Benefits

Local nature under BNG offers recreation, improves public health, and fosters community cohesion through green spaces. It also enables environmental education.

  • Economic Benefits

BNG creates revenue streams like eco-tourism and green jobs. It also increases property values while lowering utility costs and disaster risks.

By quantifying nature’s immense value, BNG elevates ecology’s worth in policy and economics. Each percentage gain, compounds, developing diverse benefits. BNG offers a roadmap to resilient futures where both people and planet thrive.

Stakeholders Affected by BNG.

BNG policies broadly affect three main groups – landowners, developers, and local planning authorities.

  • Landowners can profit by selling habitat credits, pending registration and consent requirements.
  • Developers must minimize ecological impacts and offset losses through on/off-site habitat creation or buy government credits as a last resort, to gain planning consent. The BNG must be monitored and stewarded for 30 years.
  • Local authorities are responsible for approving developers’ BNG plans before awarding planning consents and monitoring them through construction and for the following 30 years.

Overall, BNG creates a framework of shared accountability between key stakeholders, from habitat brokers to project teams, to sustainably balanced development and conservation. Advance coordination between ecologists, developers, and local councils is crucial to successfully implement plans that distribute benefits and responsibilities equitably across groups.


Biodiversity Metrics: Streamlining the Path to Net Gain.

Recent developments highlight the growing need for efficient quantification tools in biodiversity impact assessment. Traditionally, achieving net gain has required extensive and costly ecological field surveys to thoroughly document habitat losses and gains from development.

However, as legal obligations surrounding biodiversity net gain increase globally, streamlined digital solutions have become essential to bring ecological considerations to the forefront of sustainable infrastructure planning. One such solution is the habitat-based Biodiversity Metric tool, recently updated to version 4.0 by Natural England.

The use of this tool is mandatory in complying with the legislation and it enables rapid calculations of standardized habitat unit values for any site, taking into account factors like habitat size, condition, distinctiveness, and connectivity. Comparisons of pre- and post-development biodiversity unit totals then determine if the minimum 10% net gain target has been met.

If further gains are still required, developers have options to offset losses through additional offsite habitat creation. Overall, biodiversity metrics allow quick and standardized measurement of development impacts on ecosystems while conserving valuable financial and human resources. This supports efficient achievement of biodiversity net gain goals and broader sustainable development objectives.


Tough Terrain on the Road to Net Gain: Implementation and Economic Hurdles.

Achieving BNG poses multiple practical hurdles:

  • Implementation challenges: Gathering comprehensive and up-to-date ecological baseline data across sites requires extensive habitat surveys and monitoring. Projecting realistic biodiversity impact targets is also difficult, as high-value habitat offsets may necessitate extensive replacement areas due to slow maturation timescales.

For instance, 120 hectares of new woodland may be needed to offset just 10 hectares removed. Effective long-term habitat management and oversight must then continue for 30+ years. However, limited greenspace in urban areas constraints onsite habitat expansion options. Moreover, integrating biodiversity creation into developments while maintaining safety and access requires extensive consultant input in design planning.

  • Economic challenges: On the economic side, BNG costs for developers can be substantial. Thorough planning and documentation are essential for BNG compliance, but they add expenses. Funding required for habitat establishment and multi-decadal management also strains budgets. Local authorities face resourcing challenges in administering BNG programs and overseeing habitat delivery. Uncertainty in biodiversity unit pricing as markets establish themselves, plus variability in offset ratios, create financial instability. Targeted partnerships and pilot programs can help overcome these constraints via calibrated BNG policy frameworks.

Markets Muddled by Maps: Spatial Risk Multiplier Complexities.

In addition to these barriers, accounting for spatial variables creates added complexities surrounding net gain.

Spatial factors introduce major complexities into biodiversity offsetting frameworks. Offset ratios are highly localized and can vary widely between authorities and regions. The required ratio for the same habitat may be 1:1 in one area but 0.75:1 in a neighboring authority. This is because proximity is critical – offsets should occur as close as possible to impact sites to minimize spatial risks.

Each traded unit thus holds only a fraction of its original value when moved further away. Even larger markdowns like 1:2 may apply for distant offsets. Therefore, developers may face difficulties finding suitable habitat matches at reasonable ratios amidst regional variability. Authorities must balance setting localized multipliers to drive proximate offsets while enabling workable habitat trading markets. Overall, accounting for spatial considerations adds significant calculative and planning challenges. It requires coordinated systems so biodiversity losses are replaced as locally as feasible, without creating excessive offset burdens.


Collaborating Across Sectors to Scale Biodiversity Wins.

Attaining biodiversity net gain at scale will require collaborative solutions between stakeholders. Developer, planner, and consultant partnerships can integrate habitat creation into project design and align with local nature recovery strategies. Mapping habitat opportunities helps identify offset options and collaborations between developments to fund larger ecosystem improvements.

Gathering multiple projects under cooperatives could enable more impactful habitat restoration than piecemeal efforts. For example, creating wildlife corridors is more beneficial to invertebrates and small mammals than tiny patches of vegetation. Additionally, developments can realize ESG benefits by supporting off-site biodiversity projects aligned with corporate social responsibility goals. Partnerships with NGOs to rehabilitate degraded areas may resonate stronger with company leaders than marginal on-site gains. Overall, open communication and data sharing between sectors, paired with innovative funding models, offer promising avenues to overcome hurdles and unlock biodiversity net gain’s immense conservation potential.


Binding Biodiversity Commitments: How Legal Agreements Anchor Nature’s Net Gains

Reaching biodiversity net gain requires ensuring habitat creation and management for at least 30 years. This long-term land use commitment will be formally secured through legal agreements with local authorities or accredited conservation organizations when applying BNG policy.

A common approach is a Section 106 agreement, signed with the local planning authority as part of the development approval process. It is negotiated under Section 106 of the Town and Country Planning Act 1990. Section 106 agreement legally binds the landowner to use restrictions outlined in the agreement for a defined period. For example, 106 could designate 15 acres of woodland on the owner’s property to be maintained and protected as wildlife habitat for 30 years.

Alternatively, a conservation covenant is a private legal agreement that dedicates the land to conservation purposes like biodiversity offsets. A land trust or similar accredited body oversees the covenant, which is attached to the land’s title and transfers it to future owners.

Overall, these binding legal tools enable reliable long-term land securitization critical for the durability of biodiversity net gain outcomes.

While binding legal agreements like Section 106 and conservation covenants are critical for securing lands to sustain net gains, entering these contracts can be very difficult. Finalizing agreements with local authorities or accredited bodies often takes months or even years of complex negotiations, which puts speedy implementation of successful biodiversity commitments into question.  

Local authorities may be hesitant to enter long-term biodiversity agreements due to uncertainties around future policy, habitat monitoring capabilities, and other factors. Until streamlined frameworks are established to facilitate agreement making, the envisioned market connecting buyers and sellers of biodiversity credits may falter. Thus, while legal securitization of offset lands is essential, making these agreements work at scale remains a key challenge. Targeted incentives and capacity building for local authorities could help overcome hurdles. Overall, ensuring smooth legal processes will be vital for translating biodiversity commitments into on-the-ground conservation outcomes.


The Future Evolution of Net Biodiversity Net Gain Policy.

As biodiversity continues its alarming decline globally, bold new policy frameworks like mandatory net gain present immense opportunities for ecological revival. However, effectively mainstreaming these ambitions will require open communication, collaboration, and innovation across sectors.

Developers, planners, consultants, local authorities, land managers, and conservation groups each have vital roles to play in stewarding robust implementation amidst very real challenges. Creative partnerships and financing models can help pilot projects navigate constraints like limited site capacity, market uncertainty, and spatial complexities in offsets. Meanwhile, streamlined digital tools empower efficient, adaptable planning attuned to local recovery needs.

Looking ahead, biodiversity net gain policy will continue evolving as lessons emerge from early adoption. Governments must review progress and refine technical guidance to drive outcomes that truly uplift nature across regions. With care and cooperation, biodiversity net gain has the potential to rewrite the trajectory of degradation and steer us toward more harmonious coexistence between the built and natural worlds.

Alyasar Holou
Business Development Manager

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