An irreverent look at some of the hot topics in planning. All commentary is given in good faith but does not constitute advice! For specific help on planning matters, please contact us.

Biodiversity Net Benefit – Has Wales jumped the shark?

January 4th, 2024

While the new requirement to demonstrate a net gain in biodiversity continues to make the planning headlines in England, the concept of securing biodiversity benefits through the planning system been part of the planning framework in Wales for quite some time.

Section 6 of the Environment (Wales) Act as long ago as 2016 set out a duty for Councils in Wales to maintain and enhance biodiversity in the exercise of their functions. In successive versions of PPW since, the importance of biodiversity has been strengthened. PPW, Edition 11, requires at 6.4.5 that “Planning authorities must seek to maintain and enhance biodiversity in the exercise of their functions. This means development should not cause any significant loss of habitats or populations of species, locally or nationally and must provide a net benefit for biodiversity. (our emphasis). Future Wales, which is part of the development plan, mentions biodiversity 49 times and repeats the positive duty to enhance biodiversity in Policy 9.

The problem is that this duty has, until recently, been largely ignored in Wales. So on 11th October 2023, just ahead of the English changes and following months of signalling following its COP 15 commitments, a Ministerial Statement was issued that introduced changes to Section 6 of PPW to underscore the biodiversity requirements and to bring into play new requirements for planning applications to demonstrate biodiversity gain through green infrastructure assessments. It also introduced an effective ban on development within Sites of Special Scientific Interest, irrespective of the reason for the site’s designation.

The objective is, of course, very laudable. For too long the impacts of major land use change on the local environment has been an afterthought. Public perception has changed also, and creating new built environment with retained and new green spaces and planting has a value that perhaps it did not a few years ago.

As ever, however, WG has rushed in to apply policy ahead of England without any real appreciation of what it means in application.

The first problem is that WG appears not to provide any exceptions at all to the requirement for biodiversity enhancement and green infrastructure assessments, even if it is expected that such requirements will be proportionate for minor development.

Take, for example, change of use applications. By the wording of PPW, if a high street shop owner wants to apply to change the use of the premises to a restaurant, they must provide a green infrastructure statement and show biodiversity net benefit.

Such a change of use applies to the use of the interior space of the building and so there is little opportunity for biodiversity enhancement. A few cacti on a shelf or daffodils on the counter do not, unfortunately, count in the biodiversity metric (or do they?), and structural changes to services etc. are often not in the control of a tenant.

The only way an applicant can actually deliver positive enhancement in such a case is externally. Perhaps in some cases you could nail a bird box to a rear wall and tick the biodiversity box. However, if your unit is within a Conservation Area or involves a listed building, or if the only available external surface is a high street façade, the options are extremely limited.

Similar practical issues apply to applications for small domestic applications (which will be excluded from the BNG in England), temporary permissions and operational development such as erection of masts.

A second aspect is that WG has eschewed the approach adopted in England of using biodiversity metric assessments (which are admittedly a blunt instrument, but are at least transparent), favouring a more woolly and complex approach that they are calling “whole system” which factors in the “resilience” of ecosystems.

The game of planning Scrabble is continued further by the introduction of “stepwise” into the planning lexicon. The idea is that new development ought to be located in areas where the biodiversity is most resilient to impacts of new development.

The concept of the planning system directing where development ought to go isn’t new. Indeed, that is the very raison d’etre of the planning system.

However, sustainable development, by definition, is a careful balance of environmental interests with social and economic ones. This is precisely what TAN24 sought to achieve as long ago as 2014, where it directed that economic development with the potential to cause environmental or social harm ought to be supported by evidence that other less harmful sites have been considered.

This latest missive however is a significant widening of the concept, to all planning applications, placing biodiversity ahead of economic development, social and cultural factors.

The CIEEM Briefing Paper, upon which the new guidance is based, highlights that at the land acquisition stage developers should consider biodiversity and ecosystems, drawing upon Area Statements produced by Natural Resources Wales to scope sites for development and to demonstrate there are no more resilient locations to which the development could go. This is essentially a sequential test for biodiversity.

The concern about just how far Welsh Government might take its use of this Stepwise approach to stymie development is not theoretical. We are already seeing its effects in Ministerial decisions.

A proposal for a major solar farm in Gwent, considered entirely acceptable by an Inspector in terms of delivering a net biodiversity benefit, and with huge benefits in terms of contributing to the net zero agenda, was rejected in July 2023 by the boffins in Cathays Park because in their view a biodiversity ‘sequential test’ ought to have been a key component – and apparently more important than getting a grid connection – in selecting the site in question.

That a grid connection is an absolute requirement for the development to take place, and the extent of existing suitable grid connections in Wales is very limited ought reasonably to make this the starting point for an area of search. After all, if a viable development can’t be delivered, then it won’t happen. The logical and sensible approach is to start with this and then to consider sites within it that are the most resilient.

That this logical and sensible interpretation of the policy requirements approach was accepted by the applicant and the Inspector but still rejected by Sir Humphrey’s Welsh colleagues is very concerning.

The picture that decisions like this, and the new policy, paints is one that we have seen time and time again with Welsh Government – Taking a shiny policy idea from elsewhere, making it more restrictive on development – so that Wales can be seen to be ‘even tougher’ – and then hurling it into the development world without any real clue of how it would work.

The objective to bring biodiversity impacts to the fore in considering new development proposals is a good idea. It is a shame that in its rush to outdo England, Welsh Government has once again jumped the shark and created a system that has the potential to really harm the other strands of sustainable development and, as the recent solar farm decision underscores, achieving net zero.