Draft Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024 Draft Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024

Matthew Pennycook Excerpts

Monday 8th January 2024 General Committees

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to serve with you in the Chair, Sir Graham. I thank the Minister for her explanation of the instruments. We welcome both sets of regulations, which are integral to rolling out the new biodiversity net gain framework and integrating it with the planning system.

Although both instruments are uncontroversial, I will take this opportunity to raise three concerns with the Minister that arise from them, relating to how the new framework will operate in practice. The first relates to outcomes. I am sure the Minister agrees that, when it comes to BNG, we should always aim for the optimum outcome in terms of biodiversity value. The statutory biodiversity metric is intended to provide a rigorous and transparent framework for assessing such value, and it is designed to ensure that the focus is on the quality of land used for mitigation rather than the quantity.

However, given that BNG can be achieved in a number of different ways, there is a clear risk that sub-optimal outcomes could be produced simply because they are easier or cheaper for developers to achieve. Provided everything permitted on the biodiversity gain site register is of high quality, it should eliminate that risk for off-site BNG commitments secured via units on the market. However, the risk will remain for off-site offsetting where developers use their own land, outside the development site. That is because—if I have understood the instruments correctly—they are under no obligation to register plans in such instances, and monitoring and enforcement will fall to overstretched local authorities. Will the Minister tell us how the Government intend to guarantee that all kinds of offsetting will prioritise high-quality habitats with the greatest biodiversity potential, rather than lower-quality habitats that might be easier and cheaper to set up and maintain?

The second concern relates to habitat monitoring and maintenance. The Environment Act makes it clear that habitats should be secured for a minimum of 30 years and that, when delivering BNG, the relevant planning obligations or conservation covenants should hold for at least the same period. Off-site land used for BNG, which is recorded and verified on the biodiversity gain site register, can obviously be effectively monitored. However, the onus for monitoring and enforcing on-site improvements will lie with local authorities. Given that management plans for development are not always monitored or enforced appropriately, can the Minister give us a sense of how the Government plan to ensure that local authorities consistently maintain improvements in biodiversity value over the long term?

The third concern relates to local planning authorities themselves. I have mentioned them several times, because the effective operation of the new framework will rely heavily on LPAs being able to carry out their new duties and obligations, whether that is scrutinising individual biodiversity gain plans or reporting on BNG delivery more widely. The Government committed to funding all new burdens on local authorities arising from the Environment Act, and have provided transitional funding for LPAs to prepare for the mandatory net gain requirement up to the end of the 2023-24 financial year. Will the Minister tell us when further funding, beyond the current grant period, will be confirmed, and give us a sense of what steps her Department and the Department for Levelling Up, Housing and Communities are taking to help LPAs to secure the skills and expertise they are likely to need to meet the requirements of mandatory BNG? [Interruption.]

[The Chair]

Minister?

[Rebecca Pow]

Thank you, Sir Graham; as you can see, I was trying to scribble down those quite detailed questions. I thank the shadow Minister for supporting the statutory instruments, which, as he will realise, will be important not only for improving our developments and the way we live, but for restoring nature. They are going to be game-changing for our environment.

First, I want to clarify the date that I referenced for when local authorities will be required to report on their biodiversity net gain actions. The first report must be submitted in January 2026, and from then on it will be five-yearly. That addresses some of the points that the shadow Minister raised about whether the quality of the net gain will be good enough. The reporting requirement will make that transparent. That is one of the ways that we will be able to see that this is working and that the right nature is being delivered.

Of course, there is a whole process for developers to calculate how much nature they need to put back and to work out the credits. Natural England has a whole system for calculating biodiversity net gain credits. As I am sure the hon. Gentleman is aware, there has been a huge amount of engagement for a number of years with stakeholders, local authorities, developers, Natural England and the Future Homes Hub, so that local authority planning departments understand what is coming their way and can handle it in the right way, and so that we get the right outcomes. A great deal of work has gone into that, and there is also draft guidance on all of that.

The hon. Gentleman asked in particular about enforcement, which is an important point. Local authorities have a range of existing planning enforcement tools at their disposal, and the Environment Act includes mechanisms to ensure that commitments through conservation covenants are adhered to. The enforcing body that has entered into agreements to secure the site will play the key role in enforcement. That may be the local authority, or it could be a responsible body for a conservation covenant—there are different ways of going about it. Significant on-site biodiversity gains must be secured by a planning condition, planning obligation or conservation covenant, all of which bind the land, which means they apply to successor landowners as well. Off-site biodiversity gains must be secured, including management by either a planning obligation or a conservation covenant. Failure to deliver or attempt to deliver biodiversity net gain outcomes that are secured with the conditions or obligations, subject to which the planning permission is granted, can result in enforcement action by the planning authority. I hope that makes the position clear.

[Matthew Pennycook]

I thank the Minister for her response. All the processes that she has outlined, from the scrutiny of the initial plan to the monitoring and enforcement, rely on local authorities having the skills and capacity in this very specific and technical area, as she has made clear. Is it the Department’s contention that local authorities have the necessary skills and expertise to roll out the framework? If not, what steps is the Department taking to support local authorities in finding and bringing forward those skills and expertise?

[Rebecca Pow]

Obviously, that is an important issue to which a lot of attention has already been given. For example, I have spoken to my own local authority, which is rather excited about the whole process and has already had a lot of engagement on skills and training. But there will be more, and lessons will continue to be learnt as the whole system is rolled out and gradually reviewed. That is an important point because, for the system to work, local authorities need to know what they are doing. We have draft guidance, we have consulted widely and a lot of engagement is already taking place, but obviously more will be ongoing through both Departments.