Meanwhile, at DEFRA... Progress on conservation covenants and nutrient neutrality
Whilst Parliament is tying itself up in knots over *those* spoiling amendments to the Levelling Up & Regeneration Bill, I thought we would spend a bit of time with a government department that is often overlooked in planning world: DEFRA.
But first, for those who have been more paying more attention to football than planning reform,* a quick recap.
They LURB Me, They LURB Me Not
Last week a crucial vote on LURB was postponed by the Government because of a series of amendments put forward by conservative backbenchers.
The amendments included:
- A proposal to scrap all nationally set housing targets;
- A proposal to scrap the presumption in favour of sustainable development;
- The introduction of a "character" test, which would allow councils to refuse to grant consent;
- Introducing a Community Right to Appeal; and
- A proposal to restrict the lifespan of planning permissions to a year - ignoring the fact that it can take longer than that to discharge pre-commencement conditions in some local authorities....
If you want to read an excellent summary of why these amendments are a bad idea, take a look at Zack Simon's lastest Planoraks post, which is a fantastic, if somewhat depressing, read.
Don't get me wrong. LURB is not a perfect piece of legislation. There are aspects of the bill that I remain deeply sceptical about (not least Street Votes, the Infrastructure Levy, and Community Land Auctions), but there are aspects of it that are genuinely important.
The digitisation and simplification of the local plans is long overdue. Strategic plan making in England is grinding to a halt and we desparately need to find a way to make the production of local plans both quicker and less resource intensive.
The Government has introduced an amendment to LURB that will force water companies to upgrade their waste water treatment plants to tackle nutrient pollution. This is critical. Nutrient pollution is a major problem across the country, that is having a devastating effect on our watercourses and the creatures that reside in them. It is a problem that needs to be tackled at source, which means better regulation of the water companies.
So, it probably goes without saying that this latest round of LURB Me, LURB Me Not is more than a little disappointing.
In the midst of all this high political drama, we have had two potentially important announcements from DEFRA. One relating to conservation covenants and the other to nutrient neutrality mitigation.
Conservation Covenants
On 18 November, DEFRA published detailed guidance on Conservation Covenants. These are the detailed legal agreements that are intended to underpin the Environment Act's Biodiversity Net Gain regime.
The full guidance can be found Here.
The form of agreement envisaged is very similar to s.106 Agreements, although with the additional obligations placed on the responsible body relating to monitoring and due diligence (such as requiring them to submit an annual return).
On 25 November the guidance was updated to include the following additional paragraph:
"Who can create a conservation covenant agreement
A conservation covenant agreement must be between:
- a landowner who holds freehold title of the land or a leaseholder – if you’re a leaseholder, you must have a lease of more than 7 years with time remaining on it
- a responsible body
A responsible body can be:
- a local authority
- a public body or charity, where at least some of its main purposes or functions relate to conservation
- a private sector organisation, where at least some of its main activities relate to conservation
You need to apply to become a responsible body. The Department for Environment, Food and Rural Affairs (Defra) will publish guidance for how to become a responsible body by the end of 2022."
There are a few interesting points to note in here:
- Local authorities will not automatically become responsible bodies, they will have to apply just like everyone else;
- Charities and Private organisations can also apply provided "at least some" of their main activities relate to conservation; and
- Detailed guidance on how to apply is expected before the end of the year
This last point is likely to be a welcome, if unexpected, addition to my Christmas list.
Nutrient Neutrality Mitigation
25 November also brought a very welcome update on the Government's national nutrient neutrality mitigation scheme.
There is a lot in it and, as it is all important, I have set the update out in full below:
"Update on the Nutrient Mitigation Scheme – November 2022
Natural England has been working closely with Defra and DLUHC, alongside the Environment Agency, Forestry Commission, Homes England, the Planning Advisory Service and Local Planning Authorities (LPAs) to develop the scheme across affected catchments in England. The first mitigation projects are currently being negotiated with two partners in the Tees catchment. Investment in feasibility studies in five further catchments is underway to determine the schemes next mitigation sites. Natural England will invite applications from developers for mitigation credits in the Tees before the end of March 2023.
From December 2022, Natural England will approach landowners in a targeted way to invite them to offer their land as potential sites for nutrient mitigation. These sites will start to provide the mitigation needed by LPAs and developers, and we will expand across the country to facilitate building thousands of new homes as well as making a major contribution to nature recovery through the creation of new wetlands.
Credits from the government backed scheme will be offered in batches which any developers requiring credits can apply for. Where demand for credits exceeds supply, applications will be prioritised to minimise nutrient neutrality related delays to development, to enable development of the most homes most quickly, to facilitate small and medium enterprises, and to support the delivery of affordable and social housing. Information for developers on credit availability and price will be released ahead of the first credit sales."
In short, we all probably need to pay more attention to DEFRA in the coming months....
*or, to paraphrase my other half, normal people
The first mitigation projects are currently being negotiated with two partners in the Tees catchment. Investment in feasibility studies in five further catchments is underway to determine the schemes next mitigation sites. Natural England will invite applications from developers for mitigation credits in the Tees before the end of March 2023.
From December 2022, Natural England will approach landowners in a targeted way to invite them to offer their land as potential sites for nutrient mitigation. These sites will start to provide the mitigation needed by LPAs and developers, and we will expand across the country to facilitate building thousands of new homes as well as making a major contribution to nature recovery through the creation of new wetlands.”
Key Contact
