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Legal landscape: From victim to asset? Valuing green

The value and potential of green space and environmental improvement have been poorly understood within the planning system. Changes are afoot, but what sort of impact will they have? Keith Lancaster and Anita Kasseean take a look

Historically, biodiversity and landscape have been portrayed as victims in planning. Daily, we encounter protectionist local plan policies and objections based on ‘loss of’ arguments.

Issues such as green belt and village greens are played out in the courts. At their heart is fear of change. There is an assumption that change is negative, especially if initiated by developers seen as profiteering outsiders.

There has recently been a creeping change towards a positive planning perspective in the presumption in favour of sustainable development and recognition of the inherent value of the countryside with terms such as ‘natural capital’ and ‘ecosystem services’.

Environment bill

The environment bill 2019/20 promises targets for improving the natural environment, waste and resource efficiency, air and water quality, environmental standards, and nature and biodiversity. Importantly, what already exists in guidance and good practice will be written into statute.

The bill sanctions biodiversity gain (BG) for new development. Some planning authorities have already taken up BG,, augmenting their pre-existing duty of considering the conservation of biodiversity under the Natural Environment Rural Communities Act 2006. The problem to date has been enforcement of that duty and generating sustained improvement.

The bill allows for a register of BG sites and enables the sale of biodiversity credits to developers. Landowners may find they have new green tradable assets. Biodiversity value must increase from pre- to post-development by at least 10 per cent, a value calculated by a centrally published measurement. Planning conditions will secure a BG plan and its implementation may be secured additionally through obligations or covenants, both of which will be land charges. On-site BG is preferable to off-site mitigation or purchase of credits. Ultimately, the government wants benefits maintained for 30 years.

“One such challenge is the inevitable focus on economic regeneration in post-pandemic months and years”

Other changes are afoot. The chances of a new planning act are high, following the arrival of the planning white paper.

Environmental impact is ripe for reform. For too long planning has failed to consider development life cycle performance against what was originally analysed, with little monitoring or amendments being fed back into consented developments.

There is also the opportunity for homogenous environmental databases to establish regular baseline reporting of natural capital, given global climate change obligations with which such changes would align.

Much uncertainty remains on whether zoning could enhance green capital. To the extent zoning is introduced, designations would have to be informed by parameters such as environmental enhancement and natural disturbance.

Green economy

The increasing focus on green assets promises to be a core element in circular economy thinking by ensuring that sustainability is embedded at its heart. More crucially, it offers to add the principle of enhancement to the closed loop system of ‘make-use-reuse-remake-recycle’.

Legal framework

Coming challenges could see traction lost. One is the inevitable focus on economic regeneration post-pandemic. The second is divergence from the EU’s direction of travel on green enhancement.

A focused legal framework on valuing green will enable this economic recovery. The benefit for development lies in a change to the societal mindset, whereby green is no longer seen as a victim to be protected but as an asset to be enhanced.  

Keith Lancaster and Anita Kasseean are legal directors in the environment and planning team at Blake Morgan LLP

In brief

  • The planning system is moving to a recognition of the value of green space 
  • Biodiversity gain, natural capital accounting and green-leaning circular economy thinking are all on the agenda 
  • But, without a strong legal framework, post-pandemic regeneration and diversion from the EU policy could threaten these gains

Keith Lancaster and Anita Kasseean are legal directors in the environment and planning team at Blake Morgan LLP

Image credit | Shutterstock


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