Biodiversity Offsetting - the right balance between wildlife and development?By: Gilbert Green and Matthew Grogan, Thomson Snell & Passmore

The Government intends shortly to announce proposals to introduce biodiversity offsetting throughout the UK.

Biodiversity offsetting will allow a developer to build on habitats that are home to protected species of animals, birds and plants, provided that the developer is able to compensate either by creating a new habitat or by enhancing an existing habitat.

The apparent drive behind this policy is to find a balance between the UK’s growing need for new housing and protection of the environment. However, while this announcement has gained national press coverage, the concept of biodiversity offsetting is not new. The Department for Environment Food and Rural Affairs (Defra) has been running biodiversity pilot schemes in Devon, Doncaster, Essex, Greater Norwich, Nottinghamshire and Warwickshire (including Coventry and Solihull) since March 2012. It is unclear at this time whether the pilots can be considered successful. Research data is available from other countries such as Australia and the US, who have been implementing a similar policy for some time. The results are mixed.

It is understood that where any development involves biodiversity offsetting the developer will still need to consult with the relevant local authority and conservation groups, to ensure that there is no loss to the environment as a result of new developments.

The need to carry out ecology surveys and Environmental Impact Assessments (EIA’s) has long been an obstacle to development. Many surveys, particularly into bats, newts and other reptiles, can only be carried out at certain times of year. If these narrow windows are missed, the development is delayed, often with cost consequences, which can put the viability of a project at risk.

Initial reaction to the Government proposals is that they will not alter the need for investigation. To establish whether a potential development site might include protected habitats or species, a developer will still have to commission an EIA. If the EIA reveals the presence of a protected species, the developer will still need to adhere to the legislation and regulations covering protected species.

The current UK legislation on protected habitats and species is primarily contained in the Conservation of Habitats and Species Regulations 2010 and the Wildlife and Countryside Act 1981. The website of Natural England contains a full list of species protected by this legislation, and a developer must be aware that failure to comply with the legislation carries both criminal and civil sanctions. The developer must also take into account the principles set out in the National Planning Policy Framework (NPPF), published by the Government in March 2012, in Chapter 11 of the NPPF. One of the guiding principles states that, if significant harm from a development cannot be avoided, adequately mitigated or, as a last resort, compensated, then the planning application should be refused. A biodiversity offsetting policy would not appear to alter the status quo.

So, is biodiversity offsetting a good idea? Critics of the scheme will argue that, as habitats evolve over many years, it is impossible to re-create a habitat once it has been lost. Supporters will argue that the policy ensures a correct balance between providing sustainable homes and protecting the environment.

Initial reaction is that, while it may assist in an argument for sustainable development of land that might not otherwise have been considered eligible, Biodiversity Offsetting will not accelerate the planning process, or reduce the cost of investigating (and if necessary dealing with) protected species. If this is the case then, regrettably, this is another example of the Government tinkering with peripheral planning issues without dealing with fundamental problems with the planning system.

Ultimately, such a policy will only stand up if it proves cost effective for development purposes and strikes a balance sufficient to satisfy the majority of supporters and critics alike.

About the authors

Gilbert Green is a partner and Head of Commercial Property with Thomson Snell & Passmore. He is recognised by both Chambers and the Legal 500 guides to the legal profession as a leader in his field. His co-author Matthew Grogan is an associate in the firm's Commercial Property team.