In its response the NFU called for a specific agricultural exemption to the BNG requirements, as well as highlighting the importance of land managers being able to generate BNG units alongside other environmental services and schemes (stacking and additionality).
To help provide an overview of the consultation and the things that will be of relevance to you, we have put together a sample of our responses to the key questions contained in the consultation below:
Key areas of the consultation
Here are a sample of our responses to the key questions contained in the consultation.
Question 7 – Temporary exemption
Do you agree with our proposal not to exempt temporary applications from the biodiversity net gain requirement?
No.
Due to the varying lifespan of temporary projects, many short-term temporary projects won’t be restored to the same or better condition within 2 years since the loss and would therefore fall into the 30-year BNG requirement, making many short-term temporary projects unviable. For example, planning permission may be granted for 5 years, therefore it would be more appropriate for temporary permission to be accompanied by a requirement for net gain to be secured for the duration of the project plus remedial works. This would allow for fluidity in the market as gains which were associated with temporary permissions could then potentially be made available/enhanced for future projects.
Although temporary permitted development rights (28-day rule) would remain exempt, this may not apply to all temporary developments as many temporary agricultural structures would be in situ for more than 28 days. For example, this could include polytunnels, temporary slurry storage, mobile pig arcs, mobile poultry sheds and temporary housing for farm labour.
»Ê¼Ò»ªÈËcalls for a standalone agricultural development exemption for both area and linear habitats that includes temporary agricultural developments, linear and agricultural developments that fall out of any threshold and sites without permitted development.
Question 10 – Statutory designated site exemption
Do you agree with our proposal not to exempt development within statutory designated sites for nature conservation from the biodiversity gain requirement?
The consultation proposal not to exempt developments within statutory designated sites for nature conservation from mandatory BNG makes sense, but it does mean that where development takes land from a designated site (for example SSSIs) there will be two separate obligations:
(1) to replace the habitat lost under the protected site regime; and
(2) to deliver net gain (BNG requirement).
»Ê¼Ò»ªÈËconsiders that there may be value in reviewing how these processes could work together, to implement a single streamlined and proportionate approach that addresses what is needed for compensatory habitat (based on the habitats condition) and net gain in a single plan.
To ensure agricultural businesses can remain economically viable, farmers need to be able to access development on and around designated sites and not be limited or disadvantaged by the over complexity of BNG requirements. As outlined in Q1, Q7 and Q8 the NFU calls for a standalone agricultural development exemption for agricultural developments, including those which impact on designated sites if they are to be subject to the BNG requirement.
Question 32 – Permanency (30 years plus)
How should the UK Government encourage or enable developers and landowners to secure biodiversity gain sites for longer than the minimum 30-year period?
The Environment Act sets out the minimum period for securing BNG. It is between those contracting parties to agree exact terms and length of the agreement. There is a need for all parties to enter into an agreement fully understanding the long-term consequences of the agreement. In practice, it is likely that many habitats created through BNG will be in place for a
very long-term or permanently due to other legal regimes such as Environmental Impact Assessments and the potential for sites to be designated if they are sufficiently high quality. This will, therefore, be a factor landowners consider when negotiating agreements, and may lead to some landowners seeking longer term obligations.
Where sites are not protected through other legal regimes, consideration should be given to ensuring that there is a market for the benefits to be gained through the maintenance and/or further enhancement of these areas to enable landowners to enter into subsequent agreements which will then secure the continued maintenance and enhancement of these areas going
forwards.
The Environment Act already creates tools to ensure that longer term agreements can be secured where the parties wish to do so. For example, legal agreements can be negotiated by the parties involved. For example, conservation covenants can be negotiated for any duration the parties wish. However, this may introduce another party, the responsible body, to the
decision-making process, potentially making that much more complicated.
If longer term agreements are to be encouraged, it is essential that:
- The legal contracts are fair and proportionate. They need to deal with the length of agreements, disputes, financial arrangements, and termination.
- There is a guarantee that projects can be financed for longer time periods – e.g., by recognising the value in the maintenance of registered biodiversity gains.
- Facilitating the development of environmental markets which enable landowners to sell different benefits from the same area of land where these are compatible - for example landowners should be able to sell carbon offsets, biodiversity off-sets and other nutrient off-sets separately to different buyers on the same area of land. This would maximise the benefits to the landowner and ensure that land is used efficiently to deliver maximum environmental benefit, as well as helping to incentivise the long-term maintenance of the habitat created.
Question 46 – Additionality eligibility
Do you think that a) the non-designated features or areas of statutory protected sites and/or b) local wildlife sites and local nature reserves, should be eligible for enhancement through biodiversity net gain?
Yes (a and b).
The proposal to allow the enhancement of non-designated features of statutory through BNG could maximise the benefits delivered by protected sites, particularly those which are designated for geological rather than biodiversity reasons. The proposed approach should include local wildlife sites and local nature reserves.
The proposal to bring BNG funding into the management of designated sites/local wildlife sites could in turn facilitate their improvement and is therefore welcome. This proposal must allow for stacking of funding/activities as outlined in Q47.
Question 48 – Payment stacking
Do you agree with our proposed approach to combining payments for biodiversity units with other payments for environmental services from the same parcel of land?
Yes.
Allowing landowners and managers to combine payments for Biodiversity units alongside other payments (with different or additional outcomes) would enable land managers to design projects to maximise the environmental gains and incentivise the development of schemes which offer multiple benefits. It also facilitates efficient land use and delivery of public goods as the industry goes through the Agricultural Transition period.
To enable stacking Defra will need to provide more confidence to the market around which activities are additional to publicly funded support. It is possible for one action to deliver multiple environmental outcomes. Will it really be the case the environmental land management schemes could pay for water quality improvements and BNG the biodiversity outcomes?
Further clarity is needed to understand how tax will operate on BNG sites and with BNG credits, especially alongside other environmental activities/payments.