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

Rachael Maskell Excerpts

Monday 8th January 2024 General Committees

[Rebecca Pow]

It is an absolute pleasure to have you in the Chair, Sir Graham, for our first debate after the recess. Welcome, all, back from recess. As you can hear, there is a buzz of excitement about this statutory instrument. [Hon. Members: “Hear, hear.”] It is an important moment for us.

The statutory instruments have been grouped as they are part of a package of regulations that will work together to introduce the new framework for mandatory biodiversity net gain. Biodiversity net gain is a key policy delivered by the Environment Act 2021, which I am very proud to have taken through the House, but some of the policy involves amendments to the planning system. I will speak to both instruments together, given their interlinks, but I say up front to you, Chair, and to the shadow Minister, the hon. Member for Greenwich and Woolwich, that I do not profess to be an expert in the intricacies of the planning system. I therefore commit to writing to the hon. Gentleman if he raises points that need clarification.

As I say, these instruments form part of a package of SIs that commence the new, world-leading biodiversity net gain requirement. I know that we keep saying that, but this genuinely is a piece of world-leading legislation, which is why it is so exciting that it is finally coming into operation. This new approach to development and land management was legislated for in the Environment Act 2021, and had strong support, I am pleased to say, from across the House. It aims to leave the natural environment in a measurably better state than it was before, by requiring a 10% net gain for biodiversity from each eligible grant of planning permission. Those gains must be delivered through on-site habitat enhancement or creation where possible; otherwise, they can be delivered through off-site enhancements, by purchasing units from the market, or, in the last resort, through purchasing statutory credits sold by the Government.

A public consultation on the policy and the implementation of biodiversity net gain was held in 2022; the Government response, which was published at the beginning of 2023, confirmed the policy intention of mandatory biodiversity net gain and informed the drafting of these regulations.

I turn to what the draft Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024 do. The Environment Act gives the Secretary of State for Environment, Food and Rural Affairs the power to make provision for a register of biodiversity gain sites. The core purpose of that publicly available register is to record allocations of off-site biodiversity gains to developments. The register will be established by the Biodiversity Gain Site Register Regulations 2024. The detail of how the register will operate—for instance, the information that landowners will need to provide to register their land—will be set out in those regulations, and we have published them already, in draft, ahead of the signing. We will lay them before Parliament next week, as part of the second package of SIs, which will be made under the negative procedure.

The instrument makes provision for the imposition of a financial penalty and the payment of fees relating to applications to that register. It allows for financial penalties to ensure that the biodiversity gain site register contains accurate information. Those penalties will encourage compliance, deter individuals from submitting incorrect information and remove illicit financial benefit—for example, through cost avoidance.

[Rachael Maskell (York Central) (Lab/Co-op)]

I wish the regulations success, but how has the Minister determined whether the penalties, which are incredibly small compared with the value of land, will have their due effect?

[Rebecca Pow]

Obviously, enforcement and monitoring are really important. We consulted on that, and Natural England could impose a £5,000 penalty if it found that incorrect information was submitted. In all the stakeholder engagement that took place, it was pretty much agreed that that was a suitable level of penalty. There is also a need to report on how the biodiversity is going, and how the system is building up. The first report is due from the relevant authorities on 1 January 2026—my officials will let me know if I have got that date wrong. A whole system has been built up to ensure that the process works.

The instrument also provides for fees to be charged for different applications to the register. The applications include gain site registration amendment applications, and applications for the allocation of habitat enhancements to development. The fees have been set to achieve cost recovery for the set-up and maintenance of the register. Developers are not obliged to use the biodiversity net gain register, and should first aim to achieve biodiversity gains on site before turning to any kind of off-site gains. Landowners who choose to supply off-site gains to developers must apply to register their land, and we expect that they will do so only if the benefits of selling units outweigh the costs. Without the regulations setting the requirement for fees to be paid, and the amount to be paid, the register would not achieve cost recovery, and there would be a significant cost to the Department.

I turn to the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024, ably drafted by the Department for Levelling Up, Housing and Communities. Obviously, there has been a close working relationship between that Department and the Department for Environment, Food and Rural Affairs. The Environment Act 2021 amended the Town and Country Planning Act 1990 to make provision for biodiversity net gain in the planning system by adding new schedule 7A, which sets out the statutory basis for the 10% biodiversity gain objective and metric, and the general biodiversity gain condition that will apply to planning permissions. It also made consequential changes to other parts of the Town and Country Planning Act.

These regulations will make further consequential changes. First, they provide rules in schedule 7A for determining the local planning authority responsible for the approval of a biodiversity gain plan required under the general biodiversity gain condition. Secondly, they further amend section 73 of the 1990 Act, which enables the variation of conditions of previous planning permission to cover circumstances in which an earlier biodiversity gain plan is to be regarded as approved where the development’s on-site habitat is irreplaceable. Finally, they make amendments to section 88 of the 1990 Act for the purpose of appeals against determinations by planning authorities in respect of the biodiversity gain plan. These are technical amendments to ensure that the provisions for the biodiversity net gain in the 1990 legislation work.

In conclusion, I emphasise that the regulations are essential to the successful delivery of the new mandatory net gain requirement, which will help to deliver much-needed gains for nature. Once these regulations are approved by both Houses, we will lay before Parliament the rest of the biodiversity net gain regulations, which we have already published in draft. I commend the instruments to the Committee.