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Law Society calls for net gain requirements to be disapplied where biodiversity impact not significant, amid concerns planning system will be slowed down

The Law Society said it believes that 10% biodiversity net gain requirements should be applied “as broadly as possible” and that exemptions should be kept to a minimum, in a response to a consultation undertaken by the Department for Environment, Food and Rural Affairs (DEFRA) on the scope of proposed regulations.

However, Chancery Lane also said that where biodiversity impact is not significant, net gain requirements should be disapplied “as they will considerably slow down the planning system and likely lead to enforcement difficulties”.

The DEFRA consultation asked for feedback on the scope of the biodiversity net gain regulations to be introduced under powers in the Environment Act 2021 under both:

  • the Town and Country Planning Act 1990 (for conventional planning permissions)
  • the Planning Act 2008 (for development consent orders and nationally significant infrastructure projects (NSIPs))

It concerns implementation of aspects of the Environment Act, which introduced a new mandatory requirement for developments that result in loss or degradation of habitat to provide at least a 10% biodiversity net gain. This could be through on or off-site habitat improvements or the purchase of biodiversity credits.

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The Law Society said it further believed that:

  • off-site biodiversity gains should only be adopted “as a last resort in order to ensure the legitimacy and longevity of the biodiversity net gain units market and overall delivery of the strategy”.
  • there should be a general consistency of approach between the NSIPs and Town and Country Planning Act 1990 regimes.
  • the government’s role in the biodiversity net gain unit credit market should be to provide the overarching regulatory framework and associated guidance to enable the market to function efficiently and to avoid abuse by participants.
  • guidance should be issued to clarify details on aspects of implementation to provide certainty and allow the scheme to operate efficiently.

The DEFRA consultation closed on 5 April 2022.

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