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Biodiversity Offsetting Consultation

In September 2013 the government published a green paper on biodiversity offsetting. Biodiversity offsets are conservation activities that are designed to give biodiversity benefits to compensate for losses - ensuring that when a development damages nature (and this damage cannot be avoided) new, bigger or better nature sites will be created. They are different from other types of ecological compensation as they need to show measurable outcomes that are sustained over time.

Berkshire LNP's view on biodiversity offsetting:

 The Berkshire Local Nature Partnership agrees that Biodiversity Offsetting schemes have the potential to positively impact biodiversity, by providing a new source of funding for conservation projects, delivering real gains in areas of priority habitat due to the ability to pool resources, and by increasing habitat connectivity. However to achieve this there are a number of factors that a scheme must constist of, which are included in our response to the consultation (below).

It should be emphasised that we only support Biodiversity Offsetting as a compensation measure, which is a last resort when environmental harm can not be avoided or adequately mitigated, as currently set out in the National Planning Policy Framework.


Berkshire LNP's response to the biodiversity offsetting consultation:

Q1. Do you think the Government should introduce a biodiversity offsetting system in England?
No, unless all of our following recommendations are included in the scheme.

Q2. Do you think the Government's objectives for the system and the characteristics the Government thinks a system would display are right?
No, the focus on making it 'quicker and cheaper' for developers is wrong, so is the assumption that locating offsets within ecological networks creates a 'net gain'. Offsetting only has merit after the planning guidance for avoidance and mitigation are followed, it must not weaken this procedure.

Q3. Do you think it is appropriate to base an offsetting system on the pilot metric? If not is there an alternative metric that should be used?
Yes with the changes listed in Qu. 4 are required before the current metric is satisfactory. Currently it is too simple to achieve its objectives. The metric must not detract from use of the mitigation hierarchy. The metric should, however, be set independently of the local authorities.

Q4. If you think the pilot metric is the right basis for an offsetting system:
a. Are there any other factors which should be considered when qualifying biodiversity loss and gain?
Yes, it is essential that the following factors are included in the metric:
• Spatial relevance and connectivity should be accounted for on both sides of the equation. Habitats contributing to an ecological network are of higher value than isolated habitats.
• Local value. The distance the offset is allowed from the development should be decided locally.
• Habitats should be offset on a 'like-for-like' basis.
• Ecosystem services need to be included – habitats may be of significant cultural or recreational value to the community, providing flood defence, or reducing air pollution in a town etc.
b. Are the weights given to the different factors appropriate?
The guidance in the NE FEP manual is not suitable for calculating the condition of non BAP habitat.

c. Are there any other changes you think should be taken into account?
The guidance will need to be very clear that factors not included within the metric still need to be accounted for outside the offsetting scheme. Such factors include:
• species requirements unless and until suitable metrics are established;
• indirect impacts which could reduce the viability of remaining parts of nearby sensitive sites e.g. recreational pressure on nearby important sites where the cumulative impacts must be addressed; predation and disturbance by domestic pets to vulnerable species; other urban effects e.g. fires, anti-social behaviour, disposal of invasive species; pollution. These are matters that do not fall neatly within the compensation metric.

Q5. Do you think offsetting assessment should be used when preparing a planning application for a project?
Yes, the biodiversity loss of a project should be calculated using a robust ecological method. However an explanation of how the full mitigation hierarchy has been followed needs to be included with the planning application. Locating potential offsetting sites should only occur once it has been concluded that avoidance and mitigation have not sufficed (i.e. there is still residual biodiversity loss).

Q6. Do you agree that it should be the responsibility of planning authorities to ensure the mitigation hierarchy is observed and decide what offset is required to compensate for any residual loss? If not, why, and how do you think offsetting should be approached in the planning system?
Ideally yes, however most are not equipped with the level of ecological expertise or resource to carry out such assessments, or identify the best offset location. These resources would need to be provided.
A national trust, independent from central government, should be set up to run and monitor offsetting at a national level. Local Nature Partnerships (LNP) and local environmental record centres could offer advice and guidance at a local level.
Consultation must take place with stakeholders with the relevant expertise, for example the Wildlife Trust or RSBP. It is worth noting that Natural England limit their planning advice to statutory features, and consultation with it does not satisfy local authorities responsibilities under the NERC duty, or the NPPF in relation to biodiversity.
Local Authorities have a duty under Section 33A of the Planning and Compulsory Purchase Act 2004 to consider the aims of LNPs when planning for strategic issues, and identifying suitable areas for receiving offsetting should be carried out in conjunction with the relevant LNP(s). Where Core Strategies have already been completed there must be a clear mechanism for such areas to be identified.

Q7. Do you think biodiversity offsetting should have a role in all development consent regimes?
Yes, if it works it should work for all terrestrial projects. We are unable to comment on suitability for marine environments.

Q8. Do you think developers should be able to choose whether to use offsetting? If so what steps could Government take to encourage developers to use offsetting?

No. If offsetting is introduced it is essential that it is mandatory (uniform) and applies to all developments with no threshold. A voluntary scheme would not be efficient as the market would not be large enough, and there would still be a resulting net loss to biodiversity.

An optional approach would not work because either offsetting would not happen, resulting in a net loss to biodiversity, or a significant amount of staff time would be spent negotiating where it would be better spent implementing the scheme.
We strongly oppose a CIL-based approach where the funds are not ring-fenced, which may increase biodiversity loss. This would conflict with the Government's international commitments and those it set out in Biodiversity 2020.

Q9. If you think developers should be required to use offsetting do you think this requirement should only apply above a threshold based on the size of the development? What level should the threshold be?
No. If the avoidance and mitigation hierarchy show there will be a residual loss then all developments with an impact should be offset. A threshold is an artificial mechanism that does not take into account the actual loss of biodiversity from small schemes, individually or cumulatively.
However, we recognise that the suggested approach would not be practical for householder application, so a simpler system would be required for smaller developments. For example, the Thames Basin Heaths SPA approach applies to each individual net new house where small developers pay a contribution towards mitigation measures that is delivered at a larger scale by local authorities.

Q10. Do you think there should be constraints on where offsets can be located? If so what constraints do you think should be in place?
Yes. For biodiversity offsetting to contribute to the Lawton recommendation of 'bigger, better, more and joined up' habitats the offsets should be located within identified ecological networks (some work may be required to draw these up), and as close to the development site as possible. Local Nature Partnerships have a key role to play in determining the location of offsets in line with local planning authorities' duty to co-operate (see comments to Qu 6.), and should be funded to do so.

Q11. Do you have any comments on the analysis set out in the impact assessment?

Q12. Do you have any evidence that would help refine the Government's analysis of the costs and benefits of the options considered in this paper? In particular, evidence relating to:

Q13. Do you think offsetting should be a single consistent national system without scope for local variation?
No. There should be a robust national system; however some local variation will be required to account for local differences, such as to take account of local visions for ecological networks, or varying conservation priorities due to differing local habitats, for example locally rare habitats may be given a higher weighting in that area. The distance the offset can be from the development needs to be decided locally (e.g. by a Local Nature Partnership) with preference towards remaining in the same local authority, county or landscape character area.
A national trust, independent from central government should be set up to run and monitor offsetting at a national level. Local Nature Partnerships and local environmental records centres could be suitably resourced to offer advice at a local level.

Q14. Do you agree with the proposed exceptions to the routine use of biodiversity offsetting? If not, why not? If you suggest additional restriction, why are they needed?
No, it should be made clear that biodiversity offsetting does not provide a charter for the destruction of local wildlife sites and other priority habitats, and does not weaken current protection.
Current legal and policy requirements should be adhered to, for example Local Plan policies on Local Wildlife Sites and priority habitats. There should be no change to paragraph 118 in the NPPF. Sites providing irreplaceable ecosystem services to the local area must also be considered and avoided.

Q15. Which habitats do you think should be considered irreplaceable?
This must be assessed on a case for case basis taking into account the whole ecosystem, but would include any that the risk of recreating is very high (including creating a habitat outside its current geographical range), where the timescale is inappropriate for the planning horizon (including ancient woodland, veteran trees, ancient lowland meadow and hedgerows), or where the loss of the habitat is detrimental to the community (such as highly used recreational areas or flood defences or sites of cultural importance). The current mitigation hierarchy must be adhered to with the loss of habitats primarily avoided.

Q16. Do you think offsetting should in principle be applied to protected species?
Yes, so long as the law is being complied with, a suitable metric is identified that suitably accounts for risk (e.g the possibility a translocation may fail), and that species are only offset on a like-for-like basis.

Q17. Has the Government identified the right constraints and features that need to be addressed when applying offsetting to protected species?
Legal advice should be sought to answer this one. Current legislation for protected species must still apply and we feel it is unlikely that this can be achieved within an offset scheme.

Q18. Do you agree that great crested newts should be the first area of focus?
Yes, due to the resource required to survey and translocate GCNs. The current mitigation system is not working as the replacement pond habitat is often unsuccessful at maintaining the same level of GCN populations as the original. However, the timescales for some of the modelling work in Box 7 are very short.

Q19. Do you have any comments on the Government's thinking on how to apply offsetting to great crested newts?
Experts in this field should be consulted (such as the Freshwater Habitats Trust, FrogLife and the local Amphibian and Reptile Groups). We are concerned that the result of this will be concentrations of GCNs, rather than an extensive range, which would make the population more at risk from climate change or extreme events such as disease or water pollution. Sufficient knowledge of the local population is required in order to ensure the offsetting scheme can maintain the conservation status of the species within its current/historical geographic range. The timescales for some of the modelling work in Box 7 are very short.

Q20. Should offsetting be considered for any other species in the near future taking account of the constraints on species offsetting?
No. In the distant future it could be considered if proved successful for GCNs. In the meantime, there would need to be a clear acknowledgement in policy that these issues are beyond the scope of the metric and must be assessed separately.

Q21. Do you think conservation covenants should be put in place as part of an offsetting system? If they are required, who do you think should be responsible for agreeing conservation covenants? If not, how else do you think offsets could be secured for the long term?
Yes. By whoever is best placed to monitor and regulate.
For example, covenants could be agreed between the local planning authority and the compensation landowner, in consultation with ecologists and bodies with local expertise such as the LNP. In the first instance, local planning authorities could ensure they are complied with, but there is a role for monitoring and regulation by a national independent body.
We do not support the point in para. 37 of the green paper that the covenant could be released if, through a planning decision, it was considered developable land, as this does not secure the land in perpetuity. Para. 7.61 of the Law Commission's Consultation Paper on Conservation Covenants (consultation paper 211) makes clear that its tests to discharge a conservation covenant are likely to be only met in a small number of cases in order to protect the principle of such covenants and to deliver the public benefit involved.

Q22. Do you think management agreements should be put in place as part of an offsetting system? If they are required, who do you think should be responsible for agreeing management agreements?
Yes. This should be linked to the conservation covenant, see comments to Qu. 21. A national trust, independent from central government, should be set up to run and monitor offsetting at a national level. Local Nature Partnerships and local environmental record centres could offer advice and guidance at a local level.

Q23. Do you think an offset register should be put in place as part of an offsetting system? If so, who do you think should be responsible for maintaining an offset register?
Yes, a national trust, independent from central government, should be set up to run and monitor offsetting at a national level. Local Nature Partnerships and local environmental record centres could be funded to offer advice and guidance at a local level.
Local environmental record centres are experienced in handling data and mapping using GIS. They also hold the environmental data for their area, so would be able to provide additional information to accompany the offset register, such as proximity to sites, habitats and species of existing biodiversity value and location within strategic areas for biodiversity enhancement, along with the context of the potential offset within the local landscape.

Q24. How long should offsets be secured for?
Biodiversity offsets should be secured in perpetuity and agreed within conservation covenants. Given that 'in perpetuity' has no numerical value attributed to it, the intention should be for the offset to be in place for the duration of the impact. We would object to proposals in the region of 25 years as this could result in long term biodiversity losses.

Q25. Are there any long term factors, besides climate change, that should be taken into account when securing offsets?
Land ownership change, pressures for change of use (e.g. if more farmland is required), protection from provider failure, disease, invasive species. These all need to be addressed in the site management plan. It should be made clear that land cannot be developed in a way which reduces its biodiversity value in the future.

Q26. Do you think biodiversity offsetting should be 'backdated' so it can apply in relation to any planning applications under consideration at the point it is introduced?

Q27. Do you think an offsetting system should take a national approach to the question of significant harm and if so how?
Yes. A case by case approach in the context of a national framework, and expert guidance is needed. Any development plan causing significant harm should be avoided.

Q28. Do you think any additional mechanisms need to put in place to secure offsets beyond conservation covenants? If so why and what are they? If this includes measures not listed above, please explain what they are?
Yes. The establishment of a public sector trust fund is the best option.

Q29. Do you think there should be constraints on what habitat can be provided as an offset? If so what constraints do you think should be put in place, and how should they work in practice?
Yes. Should offsets be required after the mitigation hierarchy followed, they should be of the same broad habitat type as that destroyed, and local to the development site. The definition of 'local' should be decided by a local organisation, e.g. a local nature partnership.

Q30. Do you agree an offsetting system should apply a strategic approach to generate net ecological gain in line with 'Making Space for Nature'? If so at what level should the strategy be set and who by? How should the system ensure compliance with the strategy?
Yes. The hybrid model should be used identifying 'advisers' for local areas. For example, the Local Nature Partnerships could each hold the vision for ecological networks in their area, but the networks should all slot together to create a national vision. The funds would need to be made available from government for these local strategies to be created.
The incentive or enabling models would both work to ensure compliance with the strategy, but would not restrict development should sites not be available within the strategy.

Q31. Do you think habitat banking should be allowed? Do you think a provider must show intent to create a habitat bank to be allowed to sell it as an offset? Do you think habitat banks should be retired if they are not used to provide offset? If so, after how long?
Yes, but only if the land was registered as an offset before any work started, assessed independently (i.e. following the scheme rules) and the offset had an expiry date (e.g. 15 years).

Q32. Do you think maintaining an environment gain that might otherwise be lost should count as an offset? If so, how long should a value be attached to the offset?
No. Maintaining current biodiversity should be done anyway.

Q33. Do you think it is acceptable or not to use biodiversity gain created for other purposes as an offset? If you do, how should it be decided what is allowed to be used as an offset?

Q34. How do you think the quality of assessments should be assured and who by?
A national trust, independent from central government, should be set up to run and monitor offsetting at a national level. Local Nature Partnerships and local environmental record centres could offer advice and guidance at a local level, and/or certain aspects of running the scheme could be devolved to them, along with funding.

Q35. How should differences of opinion over assessments be addressed?
There should be a clear mechanism put in place by the national body, we suggest CIEEM as the moderator.

Q36. Do you think the metric should take account of hedgerows? If so do you think the current approach is the right one or should it be adjusted?
Yes. It needs an irreplaceable factor for hedges of very high value.

Q37. Do you think it should be possible to offset the loss of hedgerows by creating or restoring another form of habitat?
No. Hedgerows are important as ecological corridors. All offsetting should be for similar habitat.

Q38. If conservation covenants are put in place, do you think providing for offsetting through planning guidance will be sufficient to achieve national consistency? If not, what legislative provision may be necessary?
No. Primary legislative provision is essential, and it must account for all our previous comments.
We do not believe that the Secretary of State should be given the powers to determine how biodiversity metrics are determined or when biodiversity offsetting could be used.
We fully agree with Government and the Secretary of State in acknowledging that the natural environment is the foundation of our economy. Therefore we firmly believe that we should apply the same level of independent oversight for the natural environment as we do for the core areas of our economy.
We have an independent Bank of England, an independent Financial Conduct Authority and an independent Office for National Statistics.
We would like to see an independent organisation established to measure, monitor, administer and develop schemes to increase our Natural Capital. One of the first projects would be to develop the idea of biodiversity offsetting into a credible scheme.