Biodiversity net gain and biodiversity offsetting
Specialist legal advice from Lodders Solicitors to help developers and landowners navigate biodiversity net gain and biodiversity offsetting requirements.
Property development and real estate has entered a new era, with the introduction of mandatory ‘biodiversity net gain’ requirements as detailed in the Environment Act. Biodiversity net gain is an approach that aims to leave the natural environment in a measurably better state than beforehand, by creating or enhancing habitats in association with development work.
A 10% biodiversity net gain – maintained for at least 30 years
For property developers, this means that development proposals must create demonstrable and genuine gains for biodiversity. The gains are measured against the development site’s baseline conditions, and quantified using the government’s biodiversity metric.
The requirements came into force when the Environment Act received royal assent on 10 November 2021.
We have been working in this developing area for a while, largely because of the pioneering work being done in our locality by Warwickshire County Council, as one of the local authorities chosen by government to run a pilot scheme.
Biodiversity offsetting to deliver net gain
We have become familiar with the concept of offsetting in the context of our carbon footprints, for instance, being able to offset the carbon dioxide produced in flying to holiday destinations by purchasing offsets that are then used to pay for tree planting. Biodiversity offsetting works along similar principles, and is designed to deliver effective and widespread biodiversity gain in a way that is easy for developers to use.
The Environment Bill sets out a ‘mitigation hierarchy’, which encourages developers to first seek to avoid harm by mitigating and enhancing biodiversity measures on site. If this can’t be done, the developer should aim to secure local compensatory habitat creation. As a third and final option, the developer must pay a tariff to fund cost effective habitat creation projects according to local and national conservation and natural capital priorities.
Biodiversity offset providers then offer for sale conservation projects that deliver biodiversity units which a developer can buy. Defra has proposed an outline tariff of £9,000 to £15,000 for each biodiversity unit.
For landowners there are clear opportunities to create long-term conservation projects that will deliver biodiversity units that can be sold to developers.
Developers, meanwhile, need to ensure that their planning proposals are made with biodiversity net gain in mind, and that they are set out clearly to help the planning authority to readily assess, understand, and review the proposals.
It will also be important for developers to show they have investigated all on-site and local habitat options.
Drawing on our deep expertise across rural industries, strategic land development and planning, Lodders’ biodiversity net gain specialists are able to translate the new offsetting requirements into practical, sensible legal advice. We have already advised landowners on the sale of biodiversity offset credits, guided developers through the emerging legislation, and provided advice on biodiversity offset management agreements.