Ecology in Planning and Biodiversity Net Gain

Contents

1. Ecological Standing Advice for Planning Applications in Rushcliffe - Protection of species, sites and habitats
2. Biodiversity Net Gain

1. Ecological Standing Advice for Planning Applications in Rushcliffe - Protection of species, sites and habitats

This advice applies to all major and minor planning applications. For larger developments, further bespoke surveys, mitigation and enhancement will likely be required.

If there are any queries or uncertainty about ecological issues, please contact pphillips@rushcliffe.gov.uk

Ecological issues need to be considered for all planning applications under the following legislation, regulations and guidance:

The Conservation of Habits and Species Regulations (2017) (as amended)
The National Planning Policy Framework – Section 15 (NPPF)
Natural Environment and Rural Communities Act 2006 (as amended)
The Wildlife and Countryside Act 1981 (as amended)
Environment Act 2021

Further government guidance is available from the following sites:

1.1 European protected species (EPS) have full protection under The Conservation of Habitats and Species Regulations 2017 (as amended). It’s an offence to deliberately capture, injure or kill, or deliberately disturb EPS. It may be possible to use licensing policy which allows, in certain circumstances, for reduced survey work and worst-case scenario compensation to be proposed.

It is not recommended to condition mitigation licences, as this can cause problems in gaining a mitigation licence. An ‘informative’ note to the planning permission should be added to make it clear that a mitigation licence from natural England is needed if a protected species will be impacted.

e.g., “A bat mitigation licence from Natural England is likely to be needed. It is a legal requirement to obtain a licence where a bat roost will be impacted”.

1.2 Priority Species are those listed under section 41 of the Natural Environment and Rural Communities Act 2006 (as amended) [The latest list was published in 2014 and is available on the Natural England website plus those species with species action plans published by Nottinghamshire Biodiversity Action Group

1.3 Priority Habitats are shown at UK BAP Priority Habitats | JNCC - Adviser to Government on Nature Conservation and those with habitat action plans published by Nottinghamshire Biodiversity Action Group or those classed as high or v high distinctiveness for Biodiversity Net Gain as discussed below in section 2.5.

1.4 Priority sites are European Sites (of which there are none in Rushcliffe), Sites of Special Scientific Interest (SSSI) (8 in Rushcliffe), Local Wildlife Sites (approx. 225 sites in Rushcliffe) and Local Nature Reserves (LNRs) (8 in Rushcliffe). SSSI, LWS and LNRs are shown on Nottingham City Council - Insight Mapping GIS Mapping, tick SSSI, LWS and LNR in the environment list under layers; (Protected sites are also on the RBC GIS).

All applicants should be asked if there will be any impacts on protected or priority species, habitats or sites, on or adjacent to the development, prior to the application being determined. This may be on the application form; if not they should be asked to confirm. It is helpful if the applicant can explain the reason for their answer and provide photos for example of the condition of the roof where bats are, need to be considered.

1.5 When a survey is required

Preliminary ecological appraisals are useful for assessing if more detailed species or habitat surveys are required.

A survey is required if:

there’s suitable habitat on the site to support protected species
it’s likely that protected species are present and may be affected by the proposed development
protected species are present but you’re not sure if they’ll be affected

Make sure that developers are using a suitably qualified and licensed ecologist to carry out surveys at the right time of year using appropriate methods (see Protected species and development: advice for local planning authorities for details of appropriate timings).
Ecological surveys must be undertaken by a suitably qualified and experienced ecologist. These should be full Members of one of the following and hold the appropriate licences for protected species (this should be set out within the ecological survey report):

Chartered Institution of Water and Environmental Management (CIWEM)
Institute of Ecology and Environmental Management (IEEM)
Institute of Environmental Management and Assessment (IEMA)
Landscape Institute (LI)” (Appendices)

See Biodiversity in Planning for further advice.

A determination on a planning application should not be made until all the necessary surveys have been received. Please see the council's Scheme of Local Validation.

Surveys should not usually be conditioned. Natural England's "Guidance - Protected species and development: advice for local planning authorities" states "You should not usually attach planning conditions that ask for surveys. This is because you need to consider the full impact of the proposal on protected species before you can grant planning permission". Conditions are occasionally acceptable for example where "additional or updated ecological surveys will be required". If an existing activity survey is not available, it is not appropriate to condition surveys.

If protected or priority species, habitats or sites, on or adjacent to the development are present; or if it is unknown; a Preliminary Ecological Assessment should be carried out prior to determination of the application. The report arising from this assessment is unlikely to be suitable for submission with a planning application unless the result suggests there is no indication of impact to protected or priority species and sites by the proposed development. If there is an indication of negative impact, then further surveys are likely to be required.

An Ecological Survey should always be supplied if:

The building is older than 1970 and brick or stone built or a traditional agricultural barn (Bats should be considered)
The roof, soffits, facias and bargeboards have not been replaced in the last 20 years or contain holes, gaps or lifted tiles and / or the roof or loft area is to be altered or replaced (Bats should be considered or a justification as to why this is not necessary provided)
The building is in or adjacent to woodland or water features
The building is in or adjacent to Local Wildlife Sites / other ecologically designated sites
The development will lead to the loss of a significant area of natural vegetation or a pond
Protected or priority species or habitat records (available from the Nottinghamshire Biological Record Centre (and on RBC GIS for internal enquiries)) are found on the application site or on adjacent sites (for ponds within 500m of the site, Great Crested Newts should be considered).

Please note, The level of information required will be proportionate to the scale of development proposed and the likely impact on biodiversity. In most cases a request for data from the Nottinghamshire Biological Records Centre should be undertaken, data hosted by NBN is not usually sufficient on its own, as their records do not contain the depth of data held by the Nottinghamshire Biological Records Centre.

Ecological Surveys over 2 years are not in date and should not be accepted. For highly mobile species such as badger or bats, even a 1 year old survey may be out of date, therefore if there is a risk of mobile protected species being resident, a survey completed within one year should be requested.

1.6 When a survey may not be required

A detailed survey may not be required if the applicant is able to show that protected species are unlikely to be affected even if they are on or near a development site. They could demonstrate this by explaining:

their working methods (for example leaving a roof and loft in situ)
the timing of development (for example avoiding the bird breeding season)
the life cycle and sensitivity of the specific species (avoiding works to a roof with a maternity roost when the roost is occupied) outside of the birthing season)

Standing advice from Natural England for species is linked from the ‘Protected species and development: advice for local planning authorities’ part of Natural England’s website.

1.7 Mitigation Hierarchy

In all cases the aim should to be to follow the mitigation hierarchy (as set out in NPPF):

Avoid ecological impacts by siting development where ecology impacts are minimised - most favourable option. If impacts can be avoided, they should be
Mitigate, if impacts can not be avoided provide mitigation
Compensate, if impacts can not be mitigated, provide compensation.

For important ecological constraints e.g., a bat maternity roost or very high distinctiveness habitats, their needs to be an overriding demonstration that the development is in the public interest otherwise the application should be rejected.

1.8 Bats

All bat roosts are protected if they have been used recently (this is not defined, but usually within the last 6 months), however for occasional roosts of more common bats (see Natural England standing advice for more detail) it is possible for works to be carried out with the supervision of an ecologist with a Natural England “Class licence”. Where a larger roost will be impacted, for example a maternity roost or for rarer species, a Bat Mitigation licence from Natural England is required to carry out works.

The Local Planning Authority must determine if a licence is likely to be issued before approving a planning application. The applicants consultant ecologist should provide advice on the requirements of the particular case.

Where bat roosts have been confirmed, an advisory note should be added to any decision notice, that "a bat mitigation licence from Natural England is likely to be needed. It is a legal requirement to obtain a licence where a bat roost will be impacted".

Where bats mitigation is required this should follow the Bat Mitigation Guidelines published by CIEEM online.

Where bats are likely to be present in the area (they are widespread in Rushcliffe), the use of external lighting (during construction and post construction) should be appropriate to avoid adverse impacts on bat populations, see the Institute of Lighting Professional guidance for advice. If lighting is required an agreed wildlife sensitive lighting scheme (including the use of low UV / warm spectral colour lighting (greater than 500nm or <3000K) at the lowest practical illuminance (lux)) should be developed and implemented.

Additionally, measures should be taken to ensure that the roof liners of any building do not pose a risk to roosting bats in the future.

1.9 Wild Birds

This may include many wild birds, but swallows and swifts are particularly vulnerable to householder applications. A nest while it is in use is protected, they can be removed when not in use, but it is recommended that they be replaced. We do not recommend the use of nets to exclude birds from hedgerows and vegetation as they can trap birds and may be an offence.

1.10 Badgers

All badger setts that have been used recently (i.e., within the last year) are protected from damage. Usually, a 30 m buffer is required; vehicles can collapse badger sets and should not be driven over, or within the buffer zone of badger sets without protection in place; materials should not be stored within the buffer zone. Badger setts must not be dug into (e.g., for trenches, foundations etc), without a Natural England mitigation licence. The consultant ecologist should advise the requirements of the particular case.

1.11 Hedgehog

Hedgehogs are classed as vulnerable to extinction (red listed) and are a priority species due to declines in populations, for any new boundary fencing or walls, consideration should be made to allow access (Hedgehog gates) and supporting features e.g., wood piles, gently sloping pond edges etc

1.12 Great Crested Newts

Great Crested Newts (GCN) are a protected species. A risk map is available on Natural England website
or on ArcGIS web map.

Developments within the area marked amber on the risk map are at a medium risk of impacting on GCN’s, if they will be removing ponds or natural habitats such as grass or shrubs

Rushcliffe is now part of the Natural England District Level Licencing Scheme (DLL) for Great Crested Newts, the applicant can consider joining the DLL scheme and paying compensation or alternatively an assessment of the risk to GCN must be included in ecological surveys and they must set out any measures which they propose to take to safeguard against significant risks. This may result in the need for a GCN site mitigation licence if the developer chooses not to use DLL.

Further details about the DLL scheme is available online.

1.13 Swifts

Swift Boxes / bricks must be incorporated in the vast majority of new commercial and residential developments in the Borough, in addition to any biodiversity mitigation or enhancements normally requested through the planning process.

This will:-

require a minimum of two swift bricks per suitable dwelling in at least 50% of any proposed new development
require commercial and industrial developments to have a minimum of three swift bricks installed per appropriate unit
on appropriate single dwelling schemes require two swift bricks

2. Ecological Standing Advice for Planning Applications in Rushcliffe – Biodiversity Net Gain

Biodiversity Net Gain requires developments to leave the natural environment in a measurably better condition.

2.1 The Environment Act 2021 amends the Town and Country Planning Act 1990, such that “provision for grants of planning permission in England [are] to be subject to a condition to secure that the biodiversity gain objective is met”. Local planning authorities in exercising their planning and development duties must therefore secure a minimum of 10% biodiversity net gain on all developments requiring planning permission unless exempt.

Additional regulations and guidance has been published by the government and can be viewed at GOV.Uk Land use: policies and framework blog, this standing advice will be updated as regulations and guidance are updated and the latest guidance and regulation will apply.

Mandatory Biodiversity Net Gain will be required from 12 February 2024 on major planning applications and April 2024 for minor planning applications.

2.2 The Rushcliffe Local Plan sets out further requirements for Biodiversity Net Gain. In particular Rushcliffe Local Plan Part 2: Land and Planning Policies adopted 8 October 2019 includes the following:

POLICY 1 DEVELOPMENT REQUIREMENTS – Planning permission for new development, changes of use, conversions or extensions will be granted provided that, where relevant, the following criteria are met:

6. there is no significant adverse effects on important wildlife interests and where possible, the application demonstrates net gains in biodiversity.

POLICY 36 DESIGNATED NATURE CONSERVATION SITES – Locally Designated Sites.

4. Proposals that are likely to have a significant impact on such sites will be assessed according to the following criteria:

Whether works are necessary for management of the site in the interests of conservation;
Whether adequate buffer strips and other mitigation has been incorporated into the proposals to protect species and habitats for which the Local Site has been designated; and
The development would be expected to result in no overall loss of habitat and, where possible, achieve net gains in habitat. As a last resort, any compensation could be expected to include off-setting habitats adjacent to or within the vicinity of any losses proposed.

POLICY 37 TREES AND WOODLANDS

3. Wherever tree planting would provide the most appropriate net-gains in biodiversity, the planting of additional locally native trees should be included in new developments. To ensure tree planting is resilient to climate change and diseases a wide range of species should be included on each site.

POLICY 38 NON-DESIGNATED BIODIVERSITY ASSETS AND THE WIDER ECOLOGICAL NETWORK

1. Where appropriate, all developments will be expected to preserve, restore and re-create priority habitats and the protection and recovery of priority species in order to achieve net gains in biodiversity.

4. Outside of the Biodiversity Opportunity Areas developments should, where appropriate, seek to achieve net gains in biodiversity and improvements to the ecological network through the creation, protection and enhancement of habitats, and the incorporation of features that benefit biodiversity.

2.3 The Greater Nottingham Strategic Plan is in development and will replace the Rushcliffe Local Plan Part 1: Core Strategy in due course, this will incorporate further Biodiversity Net Gain policies.

2.4 Exemptions: Mandatory Biodiversity Net Gain must be demonstrated on all development sites unless exempt, exemptions are set out on the GOV.Uk:Guidence - Biodiversity net gain: exempt developments

Rushcliffe Borough Council will not currently request you demonstrate Biodiversity Net Gain for applications exempt under the Mandatory Biodiversity Net Gain requirements.

2.5 Demonstrating Biodiversity Net Gain: in order to demonstrate Biodiversity Net Gain the most recent statutory biodiversity metric must be used, from 12 February 2024, and completed by a competent person. The Statutory Metric and its associated guidance is available online on the GOV.UK Statutory biodiversity metric tools and guides website.

For small sites, as defined by the governments online guidance, Mandatory BNG is not required until April 2024; a simplified version of the metric is available for small sites where there are no protected sites, priority species or priority habitats within the development site (see part 1 above) and no offsetting (off site BNG) is to be used.

In order to demonstrate measurable Biodiversity Net Gain, it is necessary to carry out a baseline assessment of the current biodiversity value using the appropriate metric, based on appropriate ecological surveys undertaken prior to works commencing or at an agreed date for measurement of the pre-development biodiversity value of onsite habitat (usually within 3 months of the application date). The rules for the metric (including trading rules) must be complied with.

The metric must be provided in full, on the original calculator spreadsheet, along with the condition assessments forms used to assess the habitats on site. Snapshots or pdfs are not acceptable.

A baseline metric for the site prior to development must be provided with any planning application (including for both full and outline applications) along with Biodiversity gain information (in the form of a BNG Statement or Biodiversity Gain Plan).

Where the proposed ecological design is not finalised at the application stage, the metric can include proposed details of enhancements, but a final version must be supplied prior to commencement of development (including for each phase, but it should be ensured that the minimum BNG provision across all stages will meet the requirement).

A detailed Biodiversity Gain Plan and final biodiversity metric must be submitted (if not previously provided) and approved prior to commencement of development. This must be follow the guidance on the GOV.UK Submit a Biodiversity Gain Plan webpage

2.6 Strategic Significance: Sites that Rushcliffe Borough Council regards as strategically significant and benefit from the “Formally identified in a local strategy” multiplier in the biodiversity metric are development sites which are within or immediately adjacent to:

designated Priority Sites – as described section 1.4 above, in the Greater Nottingham Blue and Green Infrastructure Strategy January 2022 and shown on Nottingham City Council - Insight Mapping GIS Mapping.
listed Green and Blue Infrastructure sites, identified in the Greater Nottingham Blue and Green Infrastructure Strategy January 2022, which have biodiversity value (this strategy includes the priority sites that were designated in 2022 and non-designated sites).
Focal Areas identified within the Rushcliffe Biodiversity Opportunity Mapping report (and within the Greater Nottingham Blue and Green Infrastructure Strategy January 2022)
sites with a reasonable wildlife value that are managed with nature conservation as a major priority, as identified in the Rushcliffe Nature Conservation Strategy, some of which may be included in the categories above.

All Biodiversity Net Gain provided within Rushcliffe Borough, outside these areas listed above will be regarded as “Location Ecologically desirable but not within a local strategy”. Biodiversity Net Gain outside of Rushcliffe Borough will be regarded as “Area/compensation not in local strategy / no local strategy”

The detail of what is meant by Strategic Significance will be replaced by the Nottinghamshire Local Nature Recovery Strategy once published, details of the LNRS can be viewed on the Nottinghamshire County Council LNRS webpage.

2.7 Significant On-site Gain

For significant on-site habitat enhancements, developers must have a legal agreement or planning obligation, which must last for at least 30 years from the date you complete the development. Sites without significant on-site gain can be secured by planning condition.

Onsite gains will be deemed significant if they contribute to locally important species or ecological networks (see GOV.UK Guidance on legal agreements for BNG) or if not locally important as per the GOV.UK guidance for developers

Locally important species and ecological networks are set out in the Rushcliffe Nature Conservation Strategy

2.8 Delivery of Biodiversity Net Gain: the delivery of the biodiversity net gain should commence as soon as practicable and must be delivered prior to occupation and must be as agreed in your biodiversity gain plan and set out in a Habitat Management and Monitoring Plan, all habitats provided must be managed in accordance with good practice (e.g. timed to avoid disturbing breeding birds, hedgerows managed according to Hedgelink etc).

BNG arrangements can be on-site, off-site or as a last resort from 12 February 2024 by payment to the governments credit scheme. Agreements for off-site gains and significant on-site gains must last a minimum of 30 years from completion of the development, including the creation of any BNG, and will be set up and monitored through legally enforceable planning conditions, S106 agreements or (in the future) conservation covenants. Conservation Covenants are not yet available (as of January 2024). On-site measures are prioritised and incentivised in the metric.

Off-site provision must be registered on the governments / Natural England off-site register (once available, expected 12 February 2024) and allocated to the development and has the value in relation to the development as specified in the BGP and legally secured for at least 30 years.

Off-site Providers operate in the Rushcliffe, they are independent of the council, and we do not vet them and are unable to endorse any provider; but the council is open to discussion and provides advice on appropriate biodiversity proposals and management. Internet links to offsite providers operating in Rushcliffe who have been in discussion with the council will be highlighted on our website.

2.9 Monitoring: as the biodiversity gain plan is delivered it must be monitored by the developer (or its agents) as per the Habitat Management and Monitoring Plan with reports made to the Local Planning Authority at agreed intervals, through the life of the agreement; stating the success / failure of the work; the condition achieved at the time of the monitoring and any remedial action that has been or will be taken if required.

2.10 Monitoring Data - the following data should be recorded by the planning admin team:

Quantity of biodiversity gains onsite and offsite (area and biodiversity units),
Composition of biodiversity gains onsite and offsite (habitats and condition provided),
Location of off-site biodiversity gains,
Number of development sites including sensitive areas (Nationally and locally designated sites),
Results of monitoring biodiversity gains (as received from developers),
Number of planning consents requiring net gain,
Number of projects requiring net gain that have submitted a satisfactory full biodiversity gain plan

2.11 Pre-application damage to site: The Act includes measures to address destruction or damage to a site to deliberately lower its pre-development biodiversity value. Any works carried out since 30 January 2020 which reduce the biodiversity value of a site or where sites have degraded through poor management, before the submission of a planning application; historic data (including aerial photography from 2020 onwards) may be required to be used to assess the baseline, and the baseline with the higher value should be used, a date for measurement of the pre-development biodiversity value of onsite habitat to set the baseline may be agreed with the LPA.

2.12 The mitigation hierarchy and irreplaceable habitats: A BNG mitigation hierarchy has been produced see the GOV.UK Draft biodiversity net gain planning practice guidance and must be followed (this is based on the NPPF mitigation hierarchy see section 1.3 above of Avoidance-Mitigation-Compensation).

Developers cannot simply go straight to the compensatory ‘off-set’ option. BNG will be easier to achieve on biodiversity-poor land (such as arable, unvegetated land and improved grasslands) and harder to demonstrate on already biodiverse sites, such as wooded sites and those with semi-improved permanent grassland or open mosaic habitats, including habitats on previously developed land, however management of high value sites will provider improved outputs.

If the on-site habitat is ‘irreplaceable’, Biodiversity Net Gain cannot be demonstrated. Mitigation for adverse effects should be delivered on-site. The current definition and guidance on irreplaceable habitats is given on the GOV.UK Irreplaceable habitats and BNG webpage. The government is due to consult further on irreplaceable habitats during 2024.

2.13 BNG and other statutory protection for sites, habitats, and species: BNG provisions in the Environment Act does not supersede or replace other statutory measures to protect wildlife. Site, habitat and species protections and assessments, mitigation and compensation as described in section 1 above must still be assessed and Biodiversity Net Gain must be additional to any mitigation and compensation.

The biodiversity metric does not address impacts on species, recognise the significance of site designations, or take account of indirect impacts, cumulative impacts or in-combination impacts. The BNG requirement for development on such sites is additional to any existing legal or policy requirements for statutory protected areas and their features, including restoration and conservation of designated features and the achievement of favourable conservation status and favourable condition. These requirements will need to be dealt with separately by the developer and planning authority.

2.14 Further information

Government advice online at:

CIEEM et. al. Guidance on Biodiversity Net Gain

BS 8683:2021 (2021) Process for designing and implementing Biodiversity Net Gain

C. Flow Process - Rushcliffe Borough Council BNG Flowchart

C.1 Approval Stage (prior to work commencing

C.1.i) Planning Application Received - is the site exempt from BNG (see 2.4 above)?

Exempt - No BNG required. Return to Ecological Survey process above.
Not exempt - see next question

C.1.ii) Has a BNG Metric (Baseline or Full, as a spreadsheet) and BNG Statement / Biodiversity Gain Plan (plus PEA / EcoIA see section 1 above) been supplied?

No - not a valid application
Yes - has the small sites metric been used and is it appropriate?
- Yes - Development Control check the development is below 0.5ha (or 1ha and applies for 9 or less dwellings) and no no protected sites, priority species or priority habitats within the development site (see part 1 above) and no offsetting (off site BNG) is to be used. If above 0.5 ha (or 1ha and applies for 9 or less dwellings) or protected sites, priority species or priority habitats are present within the development site (see part 1 above) and offsetting (off site BNG) is to be used; the application is not valid. If valid Development Control to assess Metric and BNG Statement / BNG Gain Plan (plus PEA / EcoIA).
- No - Ecologist / assistant ecologist to check BNG Metric and BNG Statement / BNG Gain Plan (plus PEA / EcoIA).
  Ecologist / assistant ecologist makes comments and recommendations

In either case Development Control determine application and include conditions for BNG including updated BNG metric / Net Gain Plan and Habitat Management and Monitoring Plan (HMMP), implementation of the Net Gain Plan and HMMP by Planning Obligation or Planning Condition as appropriate (see 2.7 above) plus any species mitigation plans (if required) in any planning approval.

C.2 Discharge of Conditions

Updated BNG metric / Net Gain Plan and / or Habitat Management and Monitoring Plan (HMMP) received

For small metric sites Development Control to assess
Other sites to be assessed by Ecologist / assistant ecologist
A sample of sites or where there is a contentious site, will be visited and surveyed onsite and analysed by the council's ecologist / assistant

Outcome:

If valid Development Control to discharge condition.

Admin to compile monitoring data as listed above, including units to be created and area of each habitat to be created.

C.3 Ongoing site monitoring post development

BNG Monitoring Reports received (as set out in the HMMP)

For small metric sites Development Control to assess
Other sites to be assessed by Ecologist / assistant ecologist
Sample of sites or where there is a contentious site, site to be surveyed and analysed by ecologist / assistant

Outcome:

If conditions met Development Control to discharge condition.

If conditions are not met Planning Enforcement to take enforcement action.

Environment