Environment | UK Regulatory Outlook May 2023

New guidance for developers on what can count towards a development’s biodiversity net gain

The Department for Environment, Food and Rural Affairs (Defra) has, on 2 May, issued new guidance for developers outlining what can count towards their biodiversity net gain (BNG).

The new guidance highlights that if developers are creating or enhancing habitat as part of their development, then this may able to count this towards their BNG, even if the development is to:

• Comply with a statutory obligation or policy, for example green infrastructure, environmental impact assessment compensation or sustainable drainage.
• Provide river basin management plan mitigation and enhancement measures.
• Provide mitigation or compensation for protected species or sites, for example nutrient mitigation.

Developers should familiarise themselves with this guidance in order to understand what they can be doing to reach a minimum of 10% BNG.

As detailed in our March issue of the Regulatory Outlook, the BNG rules for new planning applications for developments will come into force from November 2023 (subject to certain exceptions). Defra has indicated that more guidance will follow.

Selling BNG units as a land manager

Defra has also updated the guidance on selling biodiversity units as a land manager. Information has been provided on how land managers can enhance a protected site and further information on how to sell units for BNG.

Land managers looking to sell units for BNG to developers should consult this updated guidance.

EU nature restoration law could face potential delays

Last year, the European Commission proposed a new nature restoration law in a bid to reverse biodiversity loss across Europe (see our Insight for more). However, it has recently been reported that a number of Member States are criticising the proposals, with concerns including the effect it will have on renewable energy infrastructure, the availability of land for production due to the wide scope of land the legislation would apply to, as well as other economic impacts it could have. In light of this critique, there may be potential delays to the final text being adopted as legislators and Member States will need to reach an agreement.

European Commission fitness check on polluter pays principle

As noted in our earlier Regulatory Outlook, the European Commission at the end of last year launched a fitness check on how well the polluter pays principle was being applied in the EU as well as looking at the application at Member State level. The Commission has now opened a public consultation, which is open until 4 August 2023.

Findings from the fitness check will feed into recommendations on how to better apply the polluter pays principle.