Policy ENV3 – Nature Recovery Network and Biodiversity Net Gain

Comment

Representation ID: 22227

Received: 11/10/2021

Respondent: Steve Crutchley

Policy ENV3 – Nature Recovery Network and Biodiversity Net Gain

Part 2 and 3 of the policy duplicates the provisions of the emerging Environments Bill. Once the Bill is adopted it will require 10% biodiversity net gain. Dual regulatory control is inappropriate. As such parts 2 and 3 of the policy should be removed.

Comment

Representation ID: 22283

Received: 21/01/2022

Respondent: Miss Jodi Stokes

Nature Recovery Network and Biodiversity Net Gain

9.3 Part 2 of draft Policy ENV3 (Nature Recovery Network and Biodiversity Net Gain) confirms that all development shall deliver a minimum 10% net gain in biodiversity value when measured against baseline site information. We agree with that this policy is reasonable, in line with paragraph 174 of the NPPF which requires planning policies and decisions should contribute to and enhance the natural and local environment by minimising impacts on and providing net gains for biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures. Paragraph 179 of the NPPF also sets out that plans should promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity.

Comment

Representation ID: 22294

Received: 11/10/2021

Respondent: Investin PLC

Agent: Lichfields

3.17 Draft Policy ENV3 states that “all development shall deliver a minimum 10% net gain in biodiversity value when measured against baseline site information.”
3.18 Investin supports the principle of biodiversity offsetting through Biodiversity Net Gain (‘BNG’). However, the BCP should not pre-empt the Government’s requirements on BNG, set out in the 2019 Environment Bill.
3.19 An example of this pre-emption concerns Milton Keynes Council, whereby the Milton Keynes Local Plan included a policy (Policy NE3) that required BNG; albeit, it did not specify the level required. In its decision-making, the Council had sought to have regard to the 2019 Environment Bill which referred to a 10% BNG after development compared to the level of biodiversity prior to development taking place. In an appeal at Land at Brickhill Street, South Caldecotte,27 the Inspector concluded that:
“Whilst the Environment Bill is a material consideration, it is not yet law. I attach greater weight to the adopted Plan:MK Policy NE3, which does not set out any specific level of biodiversity net gain.” (IR42)
3.20 In essence, draft Policy ENV3 should be cautious in its approach to proposing a BNG policy requirement in advance of the Environment Bill passing in law. In this context, the BCA should not deviate from the current proposals on BNG as set out in the Environment Bill, and should certainly not specify a requirement above 10%. Consequently, the prefix “a minimum” should be deleted.
3.21 Moreover, it may not be possible for all sites to provide BNG on-site. The BCA should apply proportionality in their application of planning policy. Sites without reasonable opportunities to achieve biodiversity net gain should not face risks of delay through rigid or prescriptive requirements. Therefore, a policy approach to BNG should include provision for off-site contributions to mitigation, where this is appropriate and required.
3.22 Furthermore, consideration should also be given to the provision of a comprehensive package of strategically located habitat banks across the BCP area. Without a comprehensive network of these, it will be difficult for developments that require off-site mitigation to deliver this and therefore could render some otherwise deliverable sites to be undeliverable.
3.23 Draft Policy ENV3 is unsound because it fails the four tests of soundness as per NPPF paragraph 35 as it is not positively prepared, justified, effective and consistent with national policy.

Support

Representation ID: 22358

Received: 24/01/2022

Respondent: Taylor Wimpey

Agent: Avison Young

Our Client supports the principal of net gain and the 10% target which will shortly be mandated nationally. It also supports the principal of calculating net gain using the national Biodiversity Metric, assuming the Draft Plan is referring to the Biodiversity 3.0 metric provided by DEFRA, to ensure a consistency of approach between Local Authorities. The policy should be updated to make specific reference to this metric.

Comment

Representation ID: 22360

Received: 11/10/2021

Respondent: Canal & River Trust

We note the proposals for the development of a Local Nature Recovery Network and Biodiversity Net Gain within this policy. The draft plan also includes a Black Country Nature Recovery Opportunities Map, which shows many of the area's canals within a 'Priority Network Restoration Zone'. We look forward to working with the Black Country Authorities to refine these initiatives and shape policy as the national framework for Nature Recovery and Biodiversity Net Gain takes shape.

Comment

Representation ID: 22413

Received: 11/10/2021

Respondent: St Philips

Agent: Lichfields

3.17 Draft Policy ENV3 states that “all development shall deliver a minimum 10% net gain in biodiversity value when measured against baseline site information.”
3.18 St Philips supports the principle of biodiversity offsetting through Biodiversity Net Gain (‘BNG’). However, the BCP should not pre-empt the Government’s requirements on BNG, set out in the 2019 Environment Bill.
3.19 An example of this pre-emption concerns Milton Keynes Council, whereby the Milton Keynes Local Plan included a policy (Policy NE3) that required BNG; albeit, it did not specify the level required. In its decision-making, the Council had sought to have regard to the 2019 Environment Bill which referred to a 10% BNG after development compared to the level of biodiversity prior to development taking place. In an appeal at Land at Brickhill Street, South Caldecotte,27 the Inspector concluded that:
“Whilst the Environment Bill is a material consideration, it is not yet law. I attach greater weight to the adopted Plan:MK Policy NE3, which does not set out any specific level of biodiversity net gain.” (IR42)
3.20 In essence, draft Policy ENV3 should be cautious in its approach to proposing a BNG policy requirement in advance of the Environment Bill passing in law. In this context, the BCA should not deviate from the current proposals on BNG as set out in the Environment Bill, and should certainly not specify a requirement above 10%. Consequently, the prefix “a minimum” should be deleted.
3.21 Moreover, it may not be possible for all sites to provide BNG on-site. The BCA should apply proportionality in their application of planning policy. Sites without reasonable opportunities to achieve biodiversity net gain should not face risks of delay through rigid or prescriptive requirements. Therefore, a policy approach to BNG should include provision for off-site contributions to mitigation, where this is appropriate and required.
3.22 Furthermore, consideration should also be given to the provision of a comprehensive package of strategically located habitat banks across the BCP area. Without a comprehensive network of these, it will be difficult for developments that require off-site mitigation to deliver this and therefore could render some otherwise deliverable sites to be undeliverable.
3.23 Draft Policy ENV3 is unsound because it fails the four tests of soundness as per NPPF paragraph 35 as it is not positively prepared, justified, effective and consistent with national policy

Support

Representation ID: 22426

Received: 11/10/2021

Respondent: Mr Maurice Sanders

Agent: Avison Young

Policy ENV3 – Nature Recovery Work and Biodiversity Net Gain
Our Client supports the principal of net gain and the 10% target which will shortly be mandated
nationally. It also supports the principal of calculating net gain using the national Biodiversity
Metric, assuming the Draft Plan is referring to the Biodiversity 3.0 metric provided by DEFRA, to
ensure a consistency of approach between Local Authorities. The policy should be updated to
make specific reference to this metric.

Support

Representation ID: 22498

Received: 24/01/2022

Respondent: Taylor Wimpey

Agent: Avison Young

Paragraph 3.54 "Taylor Wimpey supports the principal of net gain and the 10% target which will shortly be mandated nationally. It also supports the principal of calculating net gain using the national Biodiversity Metric, assuming the Draft Plan is referring to the Biodiversity 3.0 metric provided by DEFRA, to ensure a consistency of approach between Local Authorities. The policy should be updated to make specific reference to this metric."

Comment

Representation ID: 23067

Received: 11/10/2021

Respondent: St Philips

Agent: Savills

Policy ENV3 – Nature Recovery Network and Biodiversity Net Gain

This Policy requires development to deliver the Local Nature Recovery Network Strategy and development is expected to deliver benefits appropriate to the zone they are located. However, the Black Country Strategy is not listed as a key evidence document and although a plan is provided at Appendix 18, it is unclear what development will be required to do in order to meet the requirements of Policy ENV3. Further clarity is sought on the requirements for ‘Core Expansion Zones’.
The Policy requires sites to achieve a biodiversity net gain of 10%. Any proposed uplift requested by the Council needs to accord with national policy unless evidence is provided to justify a different figure. As the Environment Bill has not yet been passed, the Council will need to monitor its position and amend the uplift requirement accordingly. Given the housing shortfall identified within the BCA and the national requirement to make efficient use of land, we consider that if suitable land is identified for off-site biodiversity improvements that should be supported to enable strategic allocations to be delivered as efficiently as possible.
We consider that Point 7 should refer to “where viable” in regards to providing compensation prior to development.

Comment

Representation ID: 23160

Received: 11/10/2021

Respondent: Environment Agency

We support the requirement that all development shall deliver a minimum 10% net gain in biodiversity value when measured against baseline site information.

New developments should not only protect watercourses and their riparian corridors but also provide overall net gain for biodiversity. Net gain for biodiversity is defined as delivering more or better habitats for biodiversity and demonstrating this through use of the Defra Biodiversity Metric. It encourages development that delivers biodiversity improvements through habitat creation or enhancement after avoiding or mitigating harm.

The Government introduced the Environment Bill in January 2020 to ensure that the overall impact from development on the environment is positive. The Bill includes measures to strengthen local government powers in relation to net gain and a minimum requirement of 10% biodiversity net gain. Chapter 15 and Paragraphs 174, 175, 179
&180 of Nationally Planning Policy Framework (NNPF) contain strengthened net gain policies. We encourage you to consider an approach to development that results in measurable net gains in biodiversity, having taken positive and negative impacts into account. Planning Practice Guidance (PPG) provides guidance on the application of net gain.

Comment

Representation ID: 23222

Received: 11/10/2021

Respondent: Heyfield Development

Agent: Harris Lamb

Policy ENV3 – Biodiversity net gain

This is a new requirement and will see the amount of land needed to achieve this increase. This will be true on brownfield and greenfield sites, with brownfields sites often being quite interesting from an ecological perspective for all manner of reasons. This also questions whether the 80% net area assumption is sound.

Comment

Representation ID: 23313

Received: 11/10/2021

Respondent: Redrow Homes Ltd

Agent: Harris Lamb

Part 2 and 3 of the policy duplicates the provisions of the emerging Environment Bill. Once the Bill is adopted it will require 10% biodiversity net gain. Dual regulatory control is inappropriate. As such parts 2 and 3 of the policy should be removed.

Measures to achieve biodiversity net gain on site could reduce coverage and consequently the number of units. This matter needs to be carefully considered in light of the draft Plans density aspirations.

Comment

Representation ID: 23336

Received: 11/10/2021

Respondent: Bloor Homes

Proposed Policy ENV3 requires all development to deliver a minimum 10% net gain in biodiversity value when measured against baseline site information. BHL are aware of the Government’s proposals on biodiversity net gain as set out in the Environment Bill. This legislation (when passed through parliament) contains a general duty to enhance biodiversity which will apply to the planning system by insertion of a new section 90A within the Town Country Planning Act 1990. The new section 90A will make it a requirement for development in England to be required to ensure the biodiversity attributable to the development exceeds the
predevelopment value by 10%. This must be measured using a recognised biodiversity metric i.e. DEFRA’s Biodiversity Metric 3.0 that was introduced in July 2021. BHL agree with the Government, that the figure of 10% strikes the right balance in providing certainty in achieving environmental outcomes whilst not prohibiting the deliverability of development. Therefore, BHL consider that the BCA should not deviate from the Government’s proposals and should not specify a requirement above 10%. BHL request that the words “a minimum” are deleted from Policy ENV3.

BHL notes that the Government will introduce exemptions applicable to the most constrained types
of development which will be set out in secondary legislation and as such, BHL considers the use of “all development” is premature. Sites without reasonable opportunities to achieve biodiversity net gain should not be delayed through inflexible and prescriptive requirements.

Support

Representation ID: 23428

Received: 15/02/2022

Respondent: L&Q Estates

Agent: Barton Willmore

9.5 L&Q Estates are supportive of Draft Policy ENV3 (Nature Recovery Network and Biodiversity Net Gain), which requires all development to deliver a minimum 10% net gain in biodiversity value when measured against baseline site information

Object

Representation ID: 23550

Received: 08/10/2021

Respondent: Tetlow King Planning

Agent: Tetlow King Planning

HAPC objects as ENV3 should not prejudice delivery of AH,
should be limited to 10% net gain and guidance on how to achieve it should be signposted.

Object

Representation ID: 43877

Received: 05/10/2021

Respondent: Taylor Wimpey

Agent: Pegasus

11.6 Policy LNR3 deals with the local recovery network and biodiversity net gain. It states that the Nature Recovery Network (NRN) is a major commitment in the Environment Bill which requires a Nature Recovery Strategy to be prepared locally and published for all areas of England. Policy ENV3 states all development shall deliver the local NRN Strategy in line with key principles. Amongst other things, it states that all development shall deliver a minimum of 10% net gain in biodiversity value. It also states that any exemption as to the need to provide biodiversity net gain will be set out in the relevant legislation and national guidance. Compensation will only be accepted in exceptional circumstances.
11.7 Paragraph 10.39 identifies that the Black Country authorities have commenced work on a Local Nature Recovery Network Strategy but this is yet to be concluded. The draft Nature Recovery Network opportunities map is included within Appendix 18 of the Plan but this again is in draft form. In view of the above there is considerable uncertainty as to whether the approach set in ENV3 will conclude in the manner envisaged, particularly where a number of the factors which will influence it are yet to be fixed. As a result, it provides an uncertain basis for the consideration of biodiversity and a more appropriate response would be for the Plan to follow the policy context set out in the NPPF on this matter. It would appear that the approach in the plan is making an attempt to predict a policy context which is at the early stages of development
and when the ultimate policy context may be significantly different.
11.8 In addition, the map produced at Appendix 18 is of such a small scale (1:125,000) as to make it unusable for many specific sites. Some of the strategies depicted by the mapping itself are difficult to understand. For example, the Fallings Park allocation is identified as a Core Expansion Zone 1 and Urban Matrix Recovery Zone 1 which recognises that the site is of lower ecological value but, due to its location, has the most potential to contribute towards a coherent ecological network and are a priority for investment in the restoration and creation of new habitats. Whilst Taylor Wimpey supports the potential for enhanced ecology and biodiversity as a consequence of the proposed development, this should not be at the expense of at the key objective to deliver the Neighbourhood Growth Area set out in the plan. This could be affected through the application of Policy ENV3 as it is currently drafted. In addition, much of the evidence relating to these matters has not yet been published and at present it remains an untested map produced by the Wildlife Trust for Birmingham and the Black Country and the local Environmental Records Centre. This is not a sufficient basis for what could be a significant Local Plan policy which has ramifications for strategic and local development.
11.9 In summary, Taylor Wimpey generally supports the approach to improving biodiversity in conjunction with development proposals. However, as set out above, further clarity is required in respect of what the NRN is, where it is and a strategy for its improvement.

Support

Representation ID: 43921

Received: 10/10/2021

Respondent: Barratt West Midlands

Agent: Turley Associates

3.59 Barratt is supportive of draft policy ENV3. Land at Pennwood has been designed to maximise the delivery of new habitat and biodiversity. The site therefore can contribute to principles identified by policy ENV3, as set out within paragraph 2.42 of the accompanying vision document which provides an overview of the ecological opportunities at the site.

Support

Representation ID: 44846

Received: 11/10/2021

Respondent: Ruskin Properties

The principle of the delivery of biodiversity net gain as part of developments is supported. However, concerns are raised regarding the ability of development to achieve 10% when balanced against other competing needs of the plan (affordable housing, planning obligations and densities) and the practicalities of delivering 10% in relation to residential development within urban areas. Clarity is required on what ‘measured against baseline site information’ means.

Comment

Representation ID: 44847

Received: 11/10/2021

Respondent: Ruskin Properties

However, concerns are raised regarding the ability of development to achieve 10% when balanced against other competing needs of the plan (affordable housing, planning obligations and densities) and the practicalities of delivering 10% in relation to residential development within urban areas. Clarity is required on what ‘measured against baseline site information’ means.
Whilst the policy states that provision on site is preferred, it does not define what is meant by ‘practicable.’ Does this mean in terms of viability/land-take or the ability for land to be managed and maintained for the long-term?
No information is given in terms of potential costs associated with an off-site contribution to sites within the local area. This will be required for developers to consider on and off-site options and to help inform negotiations on development values with landowners.

Object

Representation ID: 44950

Received: 11/10/2021

Respondent: Taylor Wimpey

Agent: Lichfields

Policy ENV3 - Nature Recovery Network and Biodiversity Net Gain

19.1 Taylor Wimpey objects to Part 1 of Policy ENV3 which requires all development to deliver the Local Nature Recovery Network Strategy. Taylor Wimpey notes that locally developed Nature Recovery Network Strategies are due to be introduced through the Environment Bill which has yet to achieve Royal Assent (as set out in further detail below). The precise detail of the requirements cannot therefore be confirmed at this stage.

19.2 The justification text to the policy notes that the Black Country Authorities have commenced work on a Local Nature Recovery Network Strategy. However, a copy of the document is not available for review and comment as part of the consultation on the Draft BCP so it is not possible to ascertain what the implications of the document will be for individual sites and respond accordingly. Taylor Wimpey therefore considers that the inclusion of this requirement in the policy is not justified at this stage.

19.3 Taylor Wimpey objects to Part 2 of the policy which requires development to deliver a minimum 10% net gain in biodiversity value when measured against baseline site information. Taylor Wimpey is concerned with the timing of this policy as it precedes the introduction of the relevant legislation on Biodiversity Net Gain [BNG].

19.4 The Environment Bill, within which the legislation in relation to BNG is enshrined is still making its passage through Parliament and has yet to reach Royal Assent. At this point it is not therefore confirmed what the final content of the legislation will be.

19.5 In addition, once the Environment Bill achieves Royal Assent, there may be a transition period and it is likely that secondary legislation and national policy will set out transitional provisions in relation to local plans and applications that fall between the old regime and the new BNG requirements under the Bill.

19.6 The secondary legislation will deal with a significant amount of detail and powers will be available to the Secretary of State to make regulations including to amend the 10% net gain objective currently identified in the legislation and to amend the type of developments which will be required to deliver net gain. It may also be the case that regulations concerning other matters are introduced. This could include matters such as the procedure for approving a biodiversity gain plan, and factors to be taken into account when determining whether to approve a plan, and how to submit and who may submit a plan, and any further matters the plan needs to address.

19.7 With regard to this matter the BCP Viability Study32 states:

“For the purposes of our plan viability assessment a 10% net biodiversity net gain/habitats charge has been explicitly included in our appraisals. We have included a Net gain delivery cost of £1,003 per housing unit for greenfield development and £268 per housing unit for brownfield development. This is based upon the West Midlands regional cost (central estimate) in the Net gain delivery cost tables (Tables 16 and 17) from the DEFRA Biodiversity net gain and local nature recovery strategies Impact Assessment 15/10/2019”.

19.8 However, in the absence of the relevant legislation at the current time , it is not clear whether the costs applied provide an accurate assessment on the likely cost of BNG. Taylor Wimpey is concerned that this cost may be too low and may not reflect the situation ‘on the ground’ on sites in the Black Country.

19.9 Part 7 of the policy states that compensation will only be accepted in exceptional circumstances and should be provided prior to development. Taylor Wimpey considers that the provision of compensation prior to development is not likely to be practicable in all instances as it may be necessary to use receipts from the sale of dwellings on the site in order to fund this compensation. This funding would not therefore be available prior to development and would start to come forward during the development process as dwellings are completed and released for sale. It is therefore considered that a better approach would be to allow for the timing of payments to be secured through legal agreements and the policy wording should be amended to allow for this approach.

Object

Representation ID: 44981

Received: 09/03/2022

Respondent: Taylor Wimpey

Agent: Lichfields

Policy ENV3 Nature Recovery Network
and Biodiversity Net Gain
Taylor Wimpey objects to part Of Policy ENV3 which requires all development to deliver the
Nature Recovery Network Strateor. Taylor Wimpey notes that locally developed Nature
Recovery Network Strategies are due to be introduced through the Environment Bill which has
yet to achieve Royal Assent (as set out in further detail below). The precise detail of the
requirements cannot therefore be confirmed at this Stage.
justification text to the policy notes that the Black Country Authorities have commenced
work on a Incal Nature Recovery Network However, a copy of the document is not
available for review and comment as part ofthe consultation on the Draft BCP so it is not
possible to ascertain what the implications of the document will be for individual sites and
respond accordingly. Taylor Wimpey therefore considers that the inclusion Of this requirement
in the policy is not justified at this stage.
Taylor Wimpey objects to part 2 Of the policy which requires development to deliver a minimum
10% net gain in biodiversity value when measured against baseline site information. Taylor
Wimpey is concerned with the timing of this policy as it precedes the introduction of the
relevant legislation on Biodiversity Net Gain LBNGI.
Environment Bill, within which the legislation in relation to BNG is enshrined is still
making its passage through parliament and has yet to reach Royal Assent. At this point it is not
therefore confirmed what the final content of the legislation will be.
In addition, once the Environment Bill achieves Royal Assent, there may be a transition period
and it is likely that secondary legislation and national policy will set out transitional provisions
in relation to local plans and applications that fall between the old regime and the new BNG
requirements under the Bill.
secondary legislation will deal with a significant amount of detail and powers will be
available to the Secretary Of State to make regulations including to amend the net gain
objective currently identified in the legislation and to amend the type of developments which
will be required to deliver net gain. It may also be the case that regulations concerning other
matters are introduced. This could include matters such as the procedure for approving a
biodiversity gain plan, and factors to be taken into account when determining whether to
approve a plan, and how to submit and who may submit a plan, and any further matters the plan
needs to address.
With regard to this matter the BCP Viability Study' states:
"For the purposes of our plan viability assessment a net biodiversity net gain/habitats
charge has been explicitly included in our appraisals. We have included a Net gain delivery
cost Of 21,003 per housing unit for greenfield development and E268 per housing unit for
brownfield development. This is based upon the West Midlands regional cost (central
estimate) in the Net gain delivery cost tables (Tables 16 and 17) from the DEFRA Biodiversity
net gain and local nature mcovery strategies Impact Assessment 15/10/2019
However, in the absence of the relevant legislation at the current time , it is not clear whether
the costs applied provide an accurate assessment on the likely cost Of BNG. Taylor Wimpey is
concerned that this cost may be too low and may not reflect the situation •on the ground' on sites
in the Black Country.
Black Count" Viability and Del
study, 2021, page 37

P rt 7 of the policy states that compensation
only be accepted in exceptional circumstances
should be pmvided prior to development. Taylor Wimpey considers that the provision of
compensation prior to development is not likely to be practicable in all instances as it may be
necessary to use receipts from the sale of dwellings on the site in order to fund this
compensation. This funding would not therefore be available prior to development and would
start to come forward during the development process as dwellings are completed and released
for sale. It is therefore considered that a better approach would be to allow for the timing of
payments to be secured through legal agreements and the policy wording should be amended to
allow for this approach.

Comment

Representation ID: 46190

Received: 11/10/2021

Respondent: Vulcan Property II Limited

Agent: Maddox Planning

The draft policy working of ENV3 should take reference from the biodiversity wording in the Planning Act 2008 once the Environment Bill gains Royal Asset and changes are enacted.

The zones of the Local Nature Recovery Network as established by the Local Nature Recovery Network Strategy should form part of the Black Country Plan, and be justified alongside being identified on the proposal map. It is not clear whether the intention is that the Local Nature Recovery Network Strategy is to be brought forward as a supplementary planning document. The Planning Practice Guidance sets outs the limitations of SPDs, which site outside of development plan policy:

‘Supplementary planning documents (SPDs) should build upon and provide more detailed advice or guidance on policies in an adopted local plan. As they do not form part of the development plan, they cannot introduce new planning policies into the development plan. They are however a material consideration in decision-making. They should not add unnecessarily to the financial burdens on development.’(Footnote 10)

Care needs to be taken to ensure that policy ENV3 does not inadvertently erroneously place planning policy outside of the development plan, which would be contrary to the requirements of the Framework in terms of soundness.