We need to learn to live with nature, not against it

Things can move at a glacial pace in the legislative fast lane. It has been five years since the need to secure biodiversity net gain (BNG) was raised as a priority and consulted upon. Since then, the Environment Act was given Royal Assent in 2021 and set out the framework for securing BNG. Two years later in the tail end of 2023, we are now coming to grips with the next round of legislative enactments, including the Levelling-up and Regeneration Act 2023 given Royal Assent only weeks ago, which will have an additional and significant impact on development. While we continue to wait for the necessary secondary legislation to deliver BNG requirements, we must not let the programme of other legislative changes fuelled by political agendas diminish the primacy of BNG. It is therefore worth stepping back to refresh our memories of why BNG is so important.

The headline messages from The Economics of Biodiversity: The Dasgupta Review are sobering and say it all:

1. Our economies, livelihoods and well-being all depend on our most precious asset: nature.
2. We have collectively failed to engage with nature sustainably, to the extent that our demands far exceed its capacity to supply us with the goods and services upon which we rely.
3. Our unsustainable engagement with nature is endangering the prosperity of current and future generations.
4. At the heart of the problem lies deep-rooted, widespread institutional failure.
5. The solution starts with understanding and accepting a simple truth: our economies are embedded within nature, not external to it.
6. We need to change how we think, act and measure success.
7. Transforming change is possible – we and our descendants deserve nothing less.

We are all subject to the impacts arising from the loss of our natural capital. If we fail to protect it, we fail to prosper – simple. Nature is an asset and should be viewed as such. It takes a mental shift to view our natural capital. We need to look at this in a similar vein to that of our manufactured assets and human capital, where one can derive benefit from things like buildings, infrastructure, skills, knowledge and health, and which can be used to shape the economic trajectory of nations.

So what next? Well, the Act provides the framework for BNG:

• Minimum 10% net gain required, calculated using the latest version of the biodiversity metric and approval of net gain plan.
• Habitat secured for a minimum of 30 years through planning condition, a section 106 obligation or conservation covenant.
• Habitat can be delivered on-site, offsite or via statutory biodiversity credits.
• There will be a national register for offsite net gain delivery sites.
• The mitigation hierarchy of avoidance, mitigation and compensation for biodiversity loss will apply.
• BNG will apply to Nationally Significant Infrastructure Projects (NSIPs) but not to marine development.
• Existing legal environmental and wildlife protections will remain alongside BNG.

There have been numerous templates and guidance documents produced in recent months, including how to secure BNG sites, management, monitoring, reporting, and the new Biodiversity Metric 4.0 to name just a few. But what is still missing is the crucial secondary legislation setting out the regulations and providing a specific date when BNG requirements go live, which we are told on government websites will be in January 2024. Would it be too much to ask for this Christmas?

Read Mishcon de Reya’s recent guide to preparing for mandatory biodiversity net gain here.

By Anita Rivera, Mishcon de Reya