21 minute read
Biodiversity net gain
by The Planner
NATURAL ANXIETY
THE FORTHCOMING ENVIRONMENT BILL WILL ENSHRINE IN LAW THE CONCEPT OF BIODIVERSITY NET GAIN – BUT WHILE THE PRINCIPLE IS WIDELY SUPPORTED, THERE ARE CONCERNS ABOUT ITS IMPLEMENTATION, AS MATT MOODY FINDS OUT
In May 2019, a report published by the UN declared that human activity is causing an unprecedented decline in biodiversity, with more than a million species across the planet threatened with extinction.
In the UK, a legal requirement mooted for nearly a decade will soon come into force to help to tackle the problem: new developments will need to improve a site’s biodiversity value by at least 10 per cent to get consent. Th e coalition government began encouraging biodiversity improvements through planning in the original national planning policy framework (NPPF), published in 2012, which advised that developers “should seek net gain where possible”. A pilot scheme set up that year saw six councils tasked with developing and testing a system for enforcing net gain. Meanwhile, large developers were trialling the idea themselves, and by 2016 Berkeley Homes had pledged to deliver net gain at all future developments.
In 2018, the government announced that a new bill intended to facilitate its 25-year environment plan would make biodiversity net gain a legal requirement. After various setbacks caused by turmoil in Westminster, the environment bill is expected to receive royal assent in the coming months. Th e bill has been hailed as “the fi nal piece in the puzzle” for net gain, but not everyone is satisfi ed with the government’s approach.
Money worries Since it was announced that biodiversity net gain (BNG) would become law, there has been concern from all sides over the burdens that enforcing it will place on already under-resourced local authorities. In its response to Defra’s consultation on its plans to implement BNG, the RTPI stressed that “proper resourcing for planners and access to ecological expertise is key”.
“Around a quarter of local authorities are thought to have in-house ecology expertise due to pressure on resources, so they’re
Biodiversity net gain: How does it work?
1. Th e Defra metric Th e idea of ‘net gain’ is based on a calculation known as the Defra metric, which has been under development by the Department of Environment, Food, and Rural Aff airs (Defra) for a number of years. Th e precise make-up of the metric was out for consultation until the end of February, and is expected to be fi nalised by September. It will, it is hoped, become the single national standard for biodiversity calculations and improve consistency across the UK.
Existing habitats are assessed against four criteria – distinctiveness, condition, strategic signifi cance, and connectivity – which act as multipliers in a formula used to calculate a site’s ‘baseline’ biodiversity value. Similarly, factors including distance from the development (if off - site), time for the habitat to mature, and the diffi culty involved in creating it are used to calculate the site’s post-development score. Th e fi nal score is found by subtracting the baseline score from the postdevelopment score. It must be 10 per cent greater than the baseline score to meet the policy test.
2. Th e mitigation hierarchy Defra rules also include a “mitigation hierarchy”, which explains what to do if the primary aim of avoiding any biodiversity loss is not possible. If unavoidable, habitat loss should be minimised, and any damage should be restored as much as possible. Otherwise, lost habitats can be “compensated for” in other locations. Th e government plans to operate a “last resort” scheme in which developers will be able to fund nationally important habitat areas by buying biodiversity credits, if local off setting is not feasible. However, details of this scheme, including how much the credits will cost, are still to be confi rmed. Th e government has confi rmed that some “irreplaceable habitats”, such as ancient woodland, will not be eligible for off setting. Importantly, existing mechanisms for protecting ecology will remain in place, and BNG will not apply at sites of special scientifi c interest (SSSIs), for example. Th e net gain policy will act as an initial hurdle for proposals to clear, but doing it will not guarantee a grant of permission.
Site maintenance Developers will be required to maintain their improvements for at least 30 years. Defra aims to enforce this through the use of “conservation covenants”, described as voluntary legal agreements between a landowner and a “responsible body” – such as a conservation group – that safeguard land for conservation. Th ey will be legally binding and will continue to apply even if land changes hands.
having to source that expertise externally, which obviously has fi nancial implications in itself,” says Rosalie Callway, project offi cer at the Partnership for Biodiversity in Planning. “Th e government is expecting local authorities and local nature partnerships to prepare local nature recovery strategies, including maps of existing nature assets, in time for the end of the two-year transition period that will follow the environment bill becoming law,” Callway continues. “But it remains unclear where the new resources will come from to enable them to do that.”
Labour MP Helen Hayes echoed these concerns in Parliament in February, calling on the government to properly fund nature recovery strategies so that they are “deliverable as well as descriptive”.
For consultant James Streets of OS Ecology, it’s a similar story. “In the North East, we have quite a lot of local authorities with ecologists, but it’s a diff erent dynamic if an authority doesn’t have one, because then the planners have to take the developer’s word.
“I can’t see how authorities without an in-house ecologist will be able to deliver the long-term monitoring required for BNG to be successful without more resources.” In some areas, local authorities that do employ ecologists have been operating a ‘sharing model’, sending their staff ‘on loan’ to neighbouring councils to meet need on an ad hoc basis. In January, then-environment secretary Th eresa Villiers appeared to address these concerns. In a policy statement sent to all local authorities, she wrote that the government would “fully fund all new burdens on local authorities arising from the environment bill”, which would “provide new opportunities for innovation as well as stimulating new economic markets”. However, Villiers has since been replaced, and precisely what funding the government will provide remains to be seen.
Teething problems Others have voiced concerns that making BNG a legal requirement might have implications for viability, and thus housebuilding targets and aff ordable housing delivery.
“It might well have an impact on viability,” says Andrew Taylor FRTPI, head of planning at major housebuilder Countryside Developments. “If you’re changing the number of homes to be built on a site or changing the density, something gets squeezed, whether it’s aff ordable housing or infrastructure or something else.” Th e transition period is likely to be especially diffi cult, says Taylor, because “it’s diffi cult to negotiate these trade-off s when you’re dealing with sites that are already allocated or already have outline consent – assumptions have been made and retrofi tting policy is diffi cult. If you know from the start, you can price it in”. According to Spencer Clubb, head of policy at the Institute of Environmental Management and Assessment, the “pace and scale of change” from “a voluntary thing being done by perhaps betterresourced developers and local authorities into something that everybody has to do” is likely to cause some “teething problems”.
“It could potentially lead to a more risk-averse treatment of planning applications
in areas with less ecological expertise,” Clubb stresses. Extra costs could possibly make a marginally viable aff ordable housing project less desirable for a developer, he adds, but “in the context of all the other factors that play into whether or not aff ordable housing projects go ahead, it may or may not prove material”. Additionally, the prospect of developers being allowed to off set habitat harm in a diff erent location – or avoid direct responsibility altogether by purchasing credits from the government – has caused some concern.
Advocates claim that the fi nal rung of the mitigation hierarchy will act as a failsafe, speeding up the planning process and allocating resources to major biodiversity projects. Others, including Friends of the Earth, have called it a “licence to trash” that puts a monetary value on irreplaceable habitats. “At most of our large-scale urban extensions and new settlements we’re contributing on site, but if you’ve got lots of smaller schemes it might be better paying into a fund that can be used to provide a properly managed wildlife area off -site,” says Taylor.
“Obviously, developers will be looking to maximise their biodiversity credits and minimise the amount of land lost within the development area,” says Streets. As a result, there are concerns that the most cost-effi cient habitats – such as speciesrich grassland – are chosen every time, leading to “very monotonous” habitats that are not sensitive to their context. However, Callway notes: “Th e BNG approach has real potential if it is applied in addition to existing species and habitats protections, and with an emphasis on promoting multiple ecosystem benefi ts on site, rather than developers always opting for quick wins or off setting options. It will require local planning authorities to have strong ecological capacity to negotiate good BNG plans from developers.”
Th e future of biodiversity One development that may provide a foundation for proper implementation of BNG is the environment bill’s commitment to create a new Offi ce for Environmental Protection (OEP). Th is would, post-Brexit, enforce rules that previously fell under the jurisdiction of the EU.
However, while the bill states that the watchdog will be able to take legal action against both public and private sector bodies that breach environmental law, it also states that it will not have the power to issue fi nes. Th e Wildlife Trust has questioned the body’s independence from government, and the BBC has suggested it could be “muzzled, tamed and stripped of funding”.
As the environment bill makes its way through Parliament, developers and local authorities alike will continue their best eff orts to prepare for the changes that mandated net gain will bring. “Th ings are changing all the time,” says Streets, “and I think we’ll have to wait and see how government policy evolves over the fi rst few years. It’s a ‘suck-it-and-see’ situation.”
Clubb adds: “Th e objective of biodiversity net gain is not only to benefi t the environment but to benefi t the planning system too, and make it more streamlined. Th is is a huge challenge, and there will be tensions in trying to deliver those competing outcomes.”
n Matt Moody is section editor at Th e Planner
S H O R T CHANGE
THE POPULARITY OF SHORTTERM LETS VIA THE ‘PLATFORM ECONOMY’ HAS HAD A SERIES OF IMPACTS ON TOWNS AND CITIES. IT COULD BE TIME FOR COHERENT REGULATION, ARGUES ANDREW COLEMAN
Whether it’s an infl ux of tourists dragging cases, raucous groups of stag parties or gentrifi cation of run-down areas, short-term letting via the ‘sharing platform’ economy is having a signifi cant eff ect in towns and cities worldwide.
Until relatively recently, holiday lets were accessed through ‘analogue’ methods such as newspapers. However, the emergence of internet sites such as Airbnb, Owners Direct and HomeAway – has generated an explosion in rooms and properties to rent. Th ese sites connect ‘hosts’ with ‘guests’ in return for a proportion of the rental fee. Airbnb was set up to enable property owners and renters to share an empty room; but it has developed into a radically diff erent model. Now the emphasis is on renting whole properties, and commercial operators have portfolios of properties that operate like hotels, but without having to comply with regulatory requirements. In Jersey City in the US, 91 per cent of Airbnb revenue goes to commercial operators. In London, between 2015 and 2019, 280 ‘super-hosts’ with more than
10 property listings managed 15 per cent of the active short-term lets listed on Airbnb. Earlier this year the Greater London Authority reported that the number of Airbnb listings had quadrupled in four years. Outer London had experienced a fi fteenfold increase.
Is this a problem? Academics Shirley Nieuwland and Rianne van Melik of Radboud University in the Netherlands, and Renia Ehrenfreucht (University of New Mexico) and Marla Nelson (University of New Orleans) have summarised the claimed positive and negative impacts:
Positives: n Increased range, type, location and price range of visitor accommodation; n Increased tax takings from business
rates, tourist taxes and income tax; n More ‘genuine’ visitor experience; n New source of income for ‘hosts’ can help subsidise low-income families; n Increased visitor numbers; n Investment in physical fabric of areas with many short-term lets (STLs); n Employment in STL) ‘service’ industry.
Negatives: n Closures of hotels and guest houses; n Rise in home rental prices, leading to evictions and shortage of long-term rentals; n Increased property prices; n Change in character of areas, to the dissatisfaction of established population; n Reduction of community engagement with local facilities; n Noise and disturbance; n Waste from STLs less likely to be recycled or managed as commercial waste; n STLs used as ‘pop-up’ brothels.
Regulatory responses Regulators have not yet reached consensus on short-term lets, not least because of the complexities of political attitudes to regulation and the diff ering legal,
institutional and fi nancial frameworks available to governments and cities. Cities contemplating regulation must also factor in opposition from the platforms, particularly Airbnb. Th en there are direct and indirect costs of regulation. While it can be tempting to propose regulation in response to complaints, this may simply push STLs to lower-income areas where complaints are less likely . Academics have identifi ed six basic approaches to regulating STLs (see box ‘Short-term lets: approaches to regulation’). Another approach is to limit the number of days a year that STLs can operate. As it stands, UK local authorities have several regulatory options to control impacts of STLs before turning to planning powers: n Environmental health legislation n Taxation – i.e. business rates n Housing legislation – local authority or social landlords can limit rights of tenants to sublet or use a property for business n Waste legislation – waste authorities can ask for a commercial waste licence n Registration of tourist accommodation allows minimum standards to be imposed n Health and safety legislation – the
Housing Act 2008 requires private sector landlords to have gas and electrical safety certifi cates. Such requirements haven’t been applied to STLs.
Few English councils have implemented a regulatory approach. Th e planning position is not clear, but determined as a question of fact and degree where there is no obvious legislative or policy answer.
Until now, too, it has been assumed that properties in use class C3(b), sleeping up to six people, may be rented as STLs – but the legal position may be shifting.
To date, appeal decisions are guided by a 2012 Court of Appeal case (Moore v SoS for Communities and Local Government), which established ‘fact and degree’ ground rules. Th is case found using a large property as commercial leisure accommodation was suffi ciently diff erent from a single-family dwelling to constitute a material change of use from C3 to sui generis. A December 2018 enforcement appeal in Cambridge shifted the goalposts, because it concerned a smaller property refused planning permission on grounds other than noise and disturbance. Th e inspector said the transient pattern of occupancy associated with letting a three-bedroom property 60 times in a calendar year “is not something I would normally associate with a dwellinghouse, or even a house in multiple occupation” and was diff erent enough from that of a house “such that, as a matter of fact and degree, I consider it amounts to a material change of use”. Permission was refused because of the impact on policies preventing loss of residential accommodation, preventing harm to amenity and undermining community facilities.
A more recent enforcement appeal in Bath is illuminating for being refused for lack of parking and because the inspector considered that a change of use had occurred even if the appellant occupied
the property part of the time.
In London, the Deregulation Act 2015 allows letting as “temporary sleeping accommodation” without planning permission for up to 90 nights a year. Th is is often interpreted as meaning a material change of use has occurred if it is proved the limit has been exceeded. Airbnb has capped the number of nights that it will rent properties for, but other businesses help landlords circumnavigate the rules.
STL owners can also advertise properties on multiple platforms and through local agencies, making it hard to monitor the real occupancy rate. Th e Mayor of London has called for compulsory STL registration. In Scotland, the draft planning bill would have brought STLs under planning control, but it was amended before enactment. Th e RTPI and others had concerns about resource implications for planning departments; Airbnb also lobbied against the change. Th e Scottish government will now give councils the power to introduce licensing for STLs.
In Glasgow, supplementary planning guidance requires a change of use for fl ats used as short-stay accommodation and provides criteria against which planning applications will be considered. It “strongly resists” STLs in certain areas.
In the Republic of Ireland, a change in planning law means that since 1 July 2019 a planning application is needed to rent out a residential property for more than 90 days a year in areas with high rents.
In Wales, RTPI Cymru is working with Gwynedd and Cardiff Councils to investigate the impact of using market housing for short-term holiday lets on the housing stock and public services.
A way forward? Airbnb is preparing its own proposals for regulation. So it may be timely to draw conclusions and suggest an approach for councils for managing STLs. Th eir rise in the UK has coincided with anti-regulatory Conservative-led governments that have reduced planning controls in England. Th e STL sector has been able to thrive with little risk of intervention by central government. In the devolved administrations moves to increase regulation are still in early stages. Financial gains and lack of regulation have encouraged investors into the STL market and led to negative eff ects. Regulation has developed in an uncoordinated way, where pressure of STRs is having the greatest eff ect or where
Companies such as Airbnb have made short lets the norm across the world’s cities
campaigns have galvanised local politicians into action.
As a starting point for a coherent regulatory approach, planners and their legal advisers should agree on terminology to describe STL rentals. A good basis already exists in Londonspecifi c statute where “temporary sleeping accommodation” is “sleeping accommodation occupied by the same person for less than ninety consecutive nights and which is provided (with or without services) for a consideration arising either by way of trade for money or money’s worth, or by reason of the employment of the occupant, whether or not the relationship of landlord and tenant is thereby created”. Planners should also recognise the potential for purpose-built student accommodation to out-compete houses of multiple occupation in university
STLS IN BRIGHTON AND HOVE In 2019 3,353 properties were listed in Brighton and Hove on STL data analytics site AirDNA; 2,236 were entire homes. Average daily rental was £121 and properties were occupied 70 per cent of the year. Th e median monthly income was £1,812.
Average local rents have increased between 2.6 and 6.1 per cent between 2018 and 2019. Th e average cost of buying a home fell by 1.3 per cent. It may be assumed that 1,565 properties (2,236 x 70 per cent) could be available for permanent occupation if not being used as STLs – up to 1.6 years’ local housing land supply, and could house a third of households on the city’s housing register. In 2014, a council ‘scrutiny panel’ recommended proposals to reduce the impact of ‘party houses’, including requiring owners to notify neighbours and to fund private noise patrols.
A 2018 council report concluded that the eff ects of STLs on hotels and guest houses was unlikely to justify regulation. Th e council is now committed to lobbying for a national registration scheme, and will develop a coordinated enforcement approach: its draft City Plan Part 2 makes it clear it may take action if a change of use from C3 has occurred.
SHORT-TERM LETS: APPROACHES TO REGULATION Approach What is it? Where? Promotional Encourages growth of STLs Seoul (South Korea) has developed a share site that aims to spread the benefi ts of STRs to local communities. Fairbnb.coop will be launching in spring 2020, giving funds to community projects in six European cities. Laissez-faire No limitations on
number, location or density Currently most UK cities. Quantitative Limits number of STLs London boroughs could limit the number of STLs they permit under the ‘90-day rule’.
Locational Limits STLs to certain areas Density restrictions Limits the number of STLs in certain areas
Qualitative restrictions Controls type of STL (or its impacts) The non-planning regulatory opportunities outlined in this article fall into this category.
cities. Some councils use licensing and article 4 directions to limit the spread of HMOs, but landlords who fi nd returns falling may look for a similar business model off ering greater rental returns, rather than selling properties as family homes. Planners also need to remember that appeal decisions suggest STLs are materially diff erent from single residential uses because of their use pattern. Th eir impact on permanent housing stock, onstreet parking and community cohesion are also material planning considerations. A suggested approach for planning
Planners must keep front of mind that short-term lets are materially diff erent from single residential uses
authorities would be:
n Establish the aims of regulation (e.g. is it to limit impacts on residential amenity, reduce loss of permanent housing, etc?). n Identify the appropriate approach. n Consider alternative forms of regulation and associated positives and negatives – is it better to have a multiteam approach or a dedicated offi cer(s)? n Consult with communities and businesses aff ected by the approach. n If choosing a planning regulation route, include it in a draft local plan or at least a supplementary planning document. n Use existing planning defi nitions to identify a suitable threshold for STLs to be considered sui generis. n Consider how data will be collected on STLs – directly from platforms or indirectly through website searches. n Include regulatory activities in a local enforcement plan and annual reports. n Review eff ectiveness of the policy when local plan is reviewed.
Th e rise of Airbnb and similar platforms has not only incentivised the growth of the ‘informal’ sharing economy but resulted in a new form of tourist accommodation and venture capitalism. Worldwide, regulatory approaches have been slow to catch up and unintended consequences have generated community opposition. Th e platforms are unlikely to acquiesce to any but the lightest regulation. However, there is an emerging consensus that STLs are diff erent from single-family dwellings and several appeals provide local planning authorities with some confi dence that they can develop a regulatory approach that will stand up to a challenge.
n Andrew Coleman MRTPI is a senior lecturer in town planning at the University of Brighton and a planning and environmental consultant. Th e views expressed are personal.
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