RTPI response to Defra’s consultation on biodiversity net gain for nationally significant infrastructure projects

The RTPI champions the power of planning in creating prosperous places and vibrant communities. As learned society, we use our expertise and research to bring evidence and thought leadership to shape planning policies and thinking. As a professional body, we have over 27,000 members across all sectors, and are responsible for setting formal standards for planning practice and education.

Biodiversity gain objective

1. Do you agree that the proposed model text provides sufficient information on the biodiversity gain objective?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

Overall, the RTPI considers that the model text generally provides sufficient information on the biodiversity gain objective when taken in conjunction with the other elements of the model text, covering how biodiversity gains are measured and what may be counted towards an applicant’s biodiversity net gain (BNG).  However, we have concerns that the specific prescription around how this should be evidenced in a biodiversity gain plan is not practicable in the context of development consent order (DCO) application and consenting.

Irreplaceable Habitat

2. Do you agree that the proposed model text provides sufficient information on irreplaceable habitat?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

The Institute welcomes the exclusion of irreplaceable habitat, but we feel that the specifics of the current model text requires a greater understanding of the DCO application and delivery process, along with greater clarity.

For example, the model text states that the biodiversity gain plan must include an agreed compensation plan, but it does not indicate with whom the plan must be agreed. We note that, based on the bullet point list of information to be provided in the biodiversity gain plan submitted as part of the DCO application later in the model text, this would need to be provided at the application stage. We would therefore propose considering whether flexibility is needed to allow applicants more time to agree the compensation plan, given that other statutory requirements and planning policy requirements in relation to irreplaceable habitat will have been met in the context of the DCO application.

Furthermore, it is not clear in the wording used throughout that this would only be required where there are direct impacts on the irreplaceable habitat (i.e. loss or deterioration). We would appreciate this being made clearer throughout the model text.

In addition, it would be helpful to clarify the expectation with regards to a ‘suitable compensation plan’ for impacts to irreplaceable habitats, and whether this is required to go beyond what would be provided by way of mitigation in Environmental Impact Assessment terms. We are aware of the developing number of layers of regimes applicable to irreplaceable habitat.

Calculating BNG

3. Do you agree that the proposed model text, alongside the statutory metric user guide, provides sufficient detail on the process for calculating biodiversity net gain?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

While we agree that the process for calculating BNG should be broadly consistent between the Town and Country Planning Act 1990 (TCPA) and Planning Act 2008 regimes, we consider that there are important differences between projects consented under the different regimes. Nationally Significant Infrastructure Projects (NSIPs) and s35 directed Projects of National Significance (PNS) consented under the Planning Act 2008 are of a much larger scale and complexity than projects consented under the TCPA regime. Given this, we feel that the proposals in this consultation require further detail to ensure that they are fit for purpose across all infrastructure types.

4. Do you think any additional guidance is required in the statutory metric user guide to clarify how it should be applied for NSIPs?

• Yes (please state what additional guidance you think is required, and explain why)
• No
• Don’t know
• Other (please explain)

We feel others will provide detail on guidance based around temporary possession, associated and ancillary development and opportunities for delivery as an integral part of a project, as well as the need for consideration and guidance around previously developed land, component habitat effects and enforcement relevant to DCOs. These areas would all benefit from greater clarity.

The pre-development biodiversity value

5. Do you agree with the proposal that all habitats within the development site boundary (i.e. the order limits) must be included in the pre-development biodiversity value?

• Agree
• Disagree (please state the circumstances when habitats should be excluded from the pre-development biodiversity value and why)
• Don’t know
• Other (please explain)

We are uncertain if this is a viable approach to implementing BNG for NSIPs. The consultation paper acknowledges that the order limits of infrastructure projects can be very large, and much larger than the actual construction area, and can include a lot of temporary activity and development. Given this, we are uncertain whether including all habitats in the order limits in the pre-development biodiversity value will result in viable and proportionate biodiversity plans. Consideration should be given to the progress of the project’s design maturity at application stage, limits of deviation which are much wider than the final design and implementation, temporary possession and subsurface and air rights development, which does not affect the biodiversity of the land.

The scale and scope of infrastructure projects can vary quite significantly. We applaud the aim of setting out a clear and consistent approach to BNG across the TCPA and NSIP regimes, but we have concerns about how this operates in practice, and concerns around proportionality and value for money. To give a more definitive opinion on this option, we would like to see the evidence and modelling that was used to justify this approach, as well as the financial impact assessment, particularly in relation to regulated infrastructure.

6. Do you agree that the proposed model text provides sufficient information on:

A) what the pre-development biodiversity value consists of?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

In relation to the proposal to use the order limits as the area for measuring the pre-development biodiversity value (and therefore dictating what the pre-development biodiversity consists of) please see our response to Question 5.

The RTPI also considers that the difference in position between TCPA and DCO in relation to the control and management of land with regard to degradation needs to be accounted for in the baseline for DCOs so as not to penalise DCO applicants where they have no control over the land before implementation of consent.

B) the relevant date for calculating the pre-development biodiversity value?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

The Institute is concerned that requiring the pre-development biodiversity value to be as it is at the submission date of the DCO application would not be workable in practice. The DCO application, including the Biodiversity Gain Plan, will be in production for many months prior to application, due to the scale and nature of infrastructure projects. Calculations will have been undertaken in order to inform the application, and these will inform the details of the project. Requiring new values to be taken at the submission of the DCO application would introduce uncertainty into this process.

Delivering BNG

7. Do you agree that the proposed model text provides sufficient information on delivering biodiversity net gain on-site, off-site and using credits?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

The RTPI welcomes the proposed approach of allowing NSIPs to deliver on-site or off-site, without specifying a requirement to consider on-site BNG as a priority. This provides helpful flexibility in delivery and will support and facilitate the opportunities that NSIPs can provide to deliver nature restoration at scale. If there was a requirement to focus on on-site delivery first, this might occur on a more fragmented basis and could undermine outcomes.

However, we are concerned that there are complexities related to land, combining opportunities and practicalities of provision and the timescales, that need to be addressed in relation to how BNG would function for NSIPs.

8. Do you agree that the proposed model text provides sufficient guidance on how to determine what counts as a significant on-site enhancement?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

We agree that the proposed model text provides guidance on how significant on-site enhancements will be determined, but there should be clear and transparent process that the determining parties (Examining Authority and Secretary of State) can use to make this decision.

The model text says that this will be determined on a case-by-case basis, noting that it will vary depending on the proposed enhancements and the value of the previous habitat. Although some examples are given, we are concerned that this does not provide sufficient guidance to applicants to determine what counts as a significant onsite enhancement. We would appreciate further detail in the guidance to expand on this, and examples in the context of different types of schemes, including linear schemes.

A lack of clarity and guidance could result in inconsistent application of BNG across DCOs, and we therefore recommend that guidance is provided to enable developers to form a judgement as to whether they are dealing with a significant onsite enhancement, and for Examining Authorities and decision-makers to have a framework for understanding and applying the test in terms of significance of the onsite enhancements on a clear and consistent basis.

Finally, the guidance on how non-significant on-site enhancements is lacking detail and clarity around maintenance, monitoring, and enforcement. It is important that this is not overlooked, as this will undermine the implementation of BNG for infrastructure projects.

Temporary use of land

9. Do you think there needs to be a bespoke policy on delivering BNG where land is temporarily used for construction of NSIP schemes?

• Yes (please explain why a different policy is required and what this should be)
• No
• Don’t know
• Other (please explain)

Potentially. Most infrastructure projects utilise temporary possession and use of land to being forward the final design and operation. Given temporary possession of land, it may be unworkable for all the land in the order to fall under the BNG requirement. Any consideration of how to apply BNG to NSIPs should include test modelling with realistic examples that demonstrate how the principles set out would work in practice.

The scope and breadth of infrastructure projects can differ immensely, and we have some concern that a one-size-fits-all approach would flatten these differences and limit the effectiveness of the policy tool.

Considerations for the delivery of biodiversity gains

10. Do you agree that the proposed model text provides sufficient information on the wider considerations for delivering biodiversity gains?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

The proposed model text provides some helpful clarification on how BNG is intended to interact with other policies and obligations. However, there are potentially additional legal duties and statutory requirements that may require NSIP/PNS applicants to enhance or create habitats, which could be taken into consideration and count towards BNG. This could include, for example, the enhanced duty ‘to seek to further the purpose’ of Protected Landscapes introduced by section 85 of the Levelling Up and Regeneration Act. We would appreciate it if the approach towards BNG for NSIPs took account of this.

Evidence for submission, and decision making

11. Do you agree that the proposed model text provides sufficient information on the following:

A) Evidence for submission?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

Whilst we recognise the value of setting out the information to be provided as part of the DCO application, and in many cases consider it likely that projects will choose to set this information out in a Biodiversity Gain Plan, we also consider that the model text should recognise the need for flexibility within the DCO application ‘architecture’ of documents, and not adopt an overly prescriptive approach.

It is likely that in the case of most NSIPs/PNS an updated Biodiversity Gain Plan will be required after the grant of development consent on implementation in full and in phase. 

B) Decision making?

• Agree
• Disagree (please state what additional information you think is required, and explain why)
• Don’t know
• Other (please explain)

The proposed model text states that “The Secretary of State can consider the biodiversity gain objective as met if there are requirements in the development consent order securing it will be”. The text could be expanded to clarify what could be considered to be a ‘secured’ gain to avoid any ambiguity or inconsistency in interpretation when different securing mechanisms.

12. Do you agree with the proposal to allow updated biodiversity gain plans to be submitted to the relevant local planning authority for approval after consent is granted?

• Agree
• Disagree (please state what alternative you think would be more appropriate and why)
• Don’t know
• Other (please explain)

The proposed model text as currently proposed is prescriptive, in that any updated Biodiversity Gain Plan would be approved by the relevant local planning authority. Whilst we can see that this could be appropriate in many cases, there are circumstances in which it might be more appropriate for another body, such as the Secretary of State or Natural England, to be the party which should approve an updated Biodiversity Gain Plan.

We also consider that the model text should recognise that it might be appropriate to have a lead local planning authority for the purposes of approvals of updated Biodiversity Gain Plans in certain circumstances, and that this can help to drive consistency in approach across the scheme and avoid unnecessary delays or inconsistency throughout different administrative areas, particularly in relation to large scale linear schemes.

Supporting evidence

13. Do you have any evidence for us to consider as part of our final impact assessment on implementing BNG for NSIPs?

• Yes (please provide the evidence you think should be considered and explain why)
• No
• Don’t know
• Other (please explain)

Overarching questions

14. Do you think the policy proposals and model text for the biodiversity gain statements outlined in this consultation need amending for any specific NSIP type?

• Yes (please explain how and why you think the proposals needs amending, and for which NSIP type(s))
• No
• Don’t know
• Other (please explain)

As set out in our responses to earlier questions, the model text is sufficient for outlining a BNG approach to NSIPs that mirrors the TCPA approach. We consider that to maintain a level playing field, all types of NSIPs should be subject to the mandatory regime for BNG, but with the specifics of the regime adapted to allow for different types and forms of infrastructure – and with respect to linear and fixed site projects.

We have concerns over a one-size-fits-all approach to BNG for NSIPS, and would welcome further information from the government about the assumptions and economic modelling that underpin this approach to BNG implementation. 

15. Do you think there are any NSIP types or circumstances that should have different requirements or remain in a voluntary regime (noting this would continue to exclude them from buying registered off-site biodiversity gains and statutory biodiversity credits)?

• Yes (please explain and provide evidence where possible)
• No
• Don’t know
• Other (please explain)

16. Do you have any additional comments on the draft biodiversity gain statement or on the next steps that are not covered by the previous questions?

• Yes (please explain)
• No

There are significant numbers of large scale and complex DCO projects registered and progressing through the pre-application process in accordance with agreed programmes under the pre-application prospectus and guidance. To enable this pipeline of projects, and to plan and prepare, it is important to have a clear timeline for the publication of a government response to the consultation, an updated biodiversity gain statement, draft Regulations for implementing the BNG regime for NSIPs and any transitional period and arrangements.

Guidance

17. Do you think there are any other topics that should be covered in BNG guidance for NSIPs?

• Yes (please state what additional guidance you think is required, and explain why)
• No
• Don’t know
• Other (please explain)

Further guidance is required confirming how BNG for NSIPs is to operate in conjunction with other regulatory regimes, particularly SROs under Ofwat and the OFTO process for generating and transmission projects.

BNG guidance for NSIPs should also provide detailed information on how maintenance for non-significant enhancements will be monitored, and how enforcement across all NSIP enhancements will be handled. For instance, for those infrastructure projects spanning multiple local authority areas.