Biodiversity offsetting, peat, conservation covenants and newts on the move

Defra, the UK Department for Environment, Food and Rural Affairs has issued a consultation paper (Green Paper) on biodiversity offsetting and development.  This paper represents a major government commitment to the introduction of biodiversity offsetting as a means to mitigate the environmental impact of development.  Government plans to have definite proposals ready by the end of this year.  Comments are invited by 7 November.

How is it likely to work?  There are already trials underway and Defra has developed a simple ‘metric’ to determine the ‘biodiversity units’ lost to development, and therefore how many units must be offset by positive environmental work elsewhere.  The Green Paper gives a simple example of how this works for a supermarket development on a site which is part derelict, part arable land and part woodland.

A number of questions flow from this: must replacement be like for like, or can one sort of habitat be substituted for another?  Hedgerows in the pilot schemes must be replaced by hedgerows for example, on a ratio of up to 3 new for one lost.

Is this a developer’s charter?  Not according to the paper, because the Mitigation Hierarchy must be followed in all cases, ie avoid unnecessary loss, mitigate impact on site by good design and only when these two are fully exhausted is compensation via offsetting to be sought.  Views on this will be contentious.

The mechanisms through which offsetting will be achieved are still to be determined.  For example direct contracts between developers and offset providers may be one way, but Community Infrastructure Levy might be another.

How will the long term future of offset sites be secured?  The work of the Law Commission on Conservation Covenants is important here to provide a workable legal framework, but equally precautions may be needed against provider failure.  Insurance bonds for example, or a government backed fund.  The Law Commission has recently issued an update on its Conservation Covenant Consultation, reporting 56 responses from a wide range of consultees, and that, “Consultees are clearly in favour of introducing conservation covenants, with a strong majority in favour of a new statutory scheme. They have suggested a wide range of potential uses for conservation covenants. These include:

  • providing security for the creation and management of a biodiversity offset site;
  • providing assurance that conservation activity will be undertaken in return for
  • payments for eco-system services;
  • dedication of sites for recreational purposes such as access for climbing and hiking;
  • allowing landowners to put in place long term land management strategies;
  • ensuring community heritage assets are protected and maintained;
  • enabling philanthropic landowners to create a conservation legacy;
  • facilitating property management measures by conservation bodies, such as selling non-operational land or properties which have been renovated;
  • limiting the need for conservation groups to take on freehold; and
  • providing a way for conservation groups to work with landowners to achieve conservation aims.”

(Law Commission Update on Conservation Covenants, September 2013, update to consultees)

Who will apply the offsetting ‘metric’, and arbitrate in the event that developers and planning authorities cannot agree?  The government seems to be leaning towards the concept of accredited assessors.  Perhaps an important role for some of the property professional bodies here in providing a means to accreditation for their members, and for the deployment of their dispute resolution services (RICS Take Note).

‘Additionality’ will also be an important consideration.  The underlying idea is that offsetting must result in the creation of something new, not just securing the continued management of existing habitat.  But what if that habitat would otherwise be under threat?  What does this imply for banking schemes where offset providers may deliberately develop habitat banks as ready-made offsets for development?  These have the additional benefit that they avoid the ‘dip’ in total net biodiversity which will follow development before new offset provision is fully in place.  But should ‘banked’ habitat have a ‘use by’ or ‘best before’ date?

Whichever way this goes, biodiversity offsetting for new development looks set to be a certainty in the next year or two.  The importance for developers is obvious, but land managers either as potential providers, managers or assessors, need to be preparing for this now.  Great Crested Newts look as if they will be the first species on the move according to the Green Paper, with some interesting material on DNA testing for their presence (they hibernate all winter so it’s very hard to find them).

Completing this week’s trio is the IUCN (International Union for Conservation of Nature) Peatland Conference taking place in York.  My peatland ecosystem service collaborators Dr David Smith and Prof Mark Read will be there, David to update on our work on the South West Mires and Mark to launch the Peatland Carbon Code, its pilot phase.  The Code will enable us to explore the practical realities of trading in peatland carbon, a helpful extension to the work we have been doing in Devon and Somerset on peatland restoration and management.  Initial indications are that without some bundling of ecosystem service payments together, it’s going to be hard to compete with traditional farming activity on economic terms.  Perhaps great scope for biodiversity offsetting here if one type of biodiversity unit can be used to offset another?

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