For this reason, we believe that Bristol urgently needs to follow the lead of the other west of England councils, B&NES, South Gloucestershire and North Somerset, and adopt a Biodiversity Net Gain Supplementary Planning Document (SPD). A list of other local authorities that have adopted their own biodiversity SPDs can be seen here on the Local Government Association planning advisory service website – Biodiversity Net Gain in Local Plans and Strategic Planning.
Councils are encouraged to develop a locally specific SPD as part of their Local Plan. This would:
- set out local priorities and strategies that require developers to deliver BNG locally
- ensure that BNG contributes to wider nature recovery plans such as the newly launched Local Nature Recovery Strategy (LNRS) and other local objectives, and help ensure that the right habitats are provided in the right places
- link BNG requirements to other strategic objectives and place-making policies in the Local Plan, to ensure a more holistic approach
- set requirements for managing and maintaining habitats provided through development.
Having such a document would clarify exactly what developers need to do in terms of the BNG requirements. While these requirements have many gaps, they are now, as it were, the only game in town and we must try to make the best of them. We believe that developing a robust BNG SPD could help mitigate these problems by adding tougher conditions that developers must meet.
With the launch of the LNRS – a collaborative effort to help people and organisations within WECA and North Somerset take effective action for nature – it has become more important than ever for Bristol City Council to bring this strategy into action, especially where new development is planned.
Two factors causing us the most concern (there are others) are the exclusion of stakeholders from the BNG decision process and the lack of enforcement of BNG requirements.
Consulting stakeholders
We’ve long been concerned that the new BNG regime excludes stakeholder groups such as ours from engaging with and commenting on the approval process for Biodiversity Gain Plans (BGPs) because of the way the planning rules work.
The BGPs are a post-approval requirement (see Schedule 7A of the TCPA ’90, Part 2, section 13(1)), which means there’s no obligation for a developer to demonstrate how it will meet its BNG responsibilities during the application stage (although the Council could require this).
Under current rules, BGPs only need to be submitted for approval to the Planning Authority after an application has been approved. However, there’s no statutory requirement to consult any statutory bodies on BGPs or to publicise or consult on the submission of a BGP prior to its approval. It seems, therefore, that we (and other stakeholders who, like us, are fighting for everyday nature) will have no say in what is proposed, or even have any idea of what a BGP contains or how it could affect us.
Surely this goes against the principles of open governance and localism which councillors should be fighting to defend, especially where it’s likely to have a direct impact on the very places that we Bristolians love and value?
Improving enforcement
As a recent article in Local Government Lawyer magazine points out, there are serious issues around BNG enforcement that need to be resolved.
We’ve been trying to engage with council officers over this issue for some time, but so far without success. Maybe the time has come for the Council to seize the initiative? With the proposed new Local Plan moving towards its public hearings stage early next year and the likelihood that the plan will be adopted next April, maybe now is the time for the reconstituted Local Plan Working Group to take this in hand.
This is what the Council currently requires from developers: Biodiversity Net Gain for major development and small site planning applications. At best, this is only advisory, unlike an SPD which would be part of the Local Plan and so compel the developer’s compliance.
One of our fears is that some planning conditions, such as this one from the recent, pre 12 February 2024, Bristol Rovers Memorial Grounds application are unenforceable. In this case they only oblige the club to submit a proposed Landscape Ecological Management Plan (LEMP). They did this last June. However, the wording of the condition means that the club is not obliged to perfect this or even to carry it out.
Readers may recall that the development had been completed and the new stands occupied long before the main application was made, well before this and other conditions had been submitted or approved. In addition, as part of the eventual approval, the club agreed to plant a wood on a piece of unused land it owns to the south of the new stadium (the area shaded green below), but this has not yet been done.
As part of this agreement, the club is expected to enter into a LEMP to plant the wood and then maintain it in perpetuity. The LEMP Condition says:
Within 6 months of the date of consent, the applicant shall submit a 30-year Landscape and Ecological Management Plan (LEMP). This should address retained features of ecological interest, together with mitigation and enhancements to be provided. The LEMP should set out management compartments, objectives, and prescriptions for all new proposed soft landscaping/planting to demonstrate how all habitats will be managed to their target condition (as specified in the BNGA). It should also show how management of the site will be resourced and monitored.
In this example, all that can be enforced is a failure to submit the LEMP within six months, which, in this case, has been done. There is a S106 imposing LEMP obligations but this is toothless and, anyway, only the Council can enforce it – which it is not obliged to do.
There’s also the practical effect of the Biodiversity Gain Hierarchy – Biodiversity net gain Guidance Paragraph: 008 Reference ID: 74-008-20240214. This effectively means that the developer need not achieve any net gain on site, or even locally, but can instead deliver it anywhere in England or, as a last resort, simply buy BNG credits, though at a premium.
For example, the grant conditions – 11 (The BGP condition), 12 & 14 – in the recent, post-12 February Council application, The White Hall, Glencoyne Square, are unenforceable given their wording as there is only an obligation to submit; again, approval is not required. We assume that a s106 agreement and a Habitat Management and Monitoring Policy (HMMP) will need to be produced, but, at the moment, we still have no idea how the self-acknowledged 38.09% habitat loss will be mitigated, or where.
Given the intense competition for space in the city, it seems inevitable that, as a result of the application of the Biodiversity Gain Hierarchy, Bristol’s nature will, bit by bit, be exported to some far-off field that no one knows or cares about. In theory, a BNG SPD could at least try to ensure that habitats lost to development are replaced locally wherever possible.
It’s been suggested that new SPDs can’t be delivered until after the new Local Plan has been examined and formally adopted. Maybe, but we see no reason why we can’t at least start a conversation about this. As it is, the proposed Local Plan will need substantial redrafting to align with the new BNG rules, having been adopted by the Council before these had been finalised.
It’s also been suggested that there are neither the funds nor enough officer time available to develop this new SPD. However, since all the adjacent councils (members of WECA), and many farther afield, have developed, or are developing, their own SPDs, we can surely save time and expense by looking on these as templates from which to build our own. The examples above alone make it all the more urgent for issues such as this to be resolved with the early adoption of a BNG SPD. We urge the Council to commission officers to draft an SPD as a matter of urgency.
A shorter version of this blog was published in 24/7 as: ‘Without enforcement, Bristol’s nature will be exported bit-by-bit‘
Bristol Tree Forum 