Following the UN Biodiversity Conference (COP 15) and the Kunming-Montreal Global Biodiversity Framework (the Global Biodiversity Framework), there has been increased focus on biodiversity issues globally. However, global agreements do not always result in concrete local action. In this latest article in our biodiversity series, we share insights from Gowling WLG's Environmental Law Year in Review 2023 and provide an update on how international action on biodiversity is playing out at the local level in Canada and the UK through environmental and planning policies. Municipalities, developers, and community groups should take note.
Canada: a greater focus on accountability for nature
In Canada, for many years, the regulatory approach to biodiversity has focused on individual species and their habitats. Canada protects plant and animal species at risk through the Species at Risk Act federally and provincial acts like the Ontario Endangered Species Act. The way these acts work is that there is a general prohibition against killing or harming a listed species and/or destroying their habitats unless you get a permit.
Governments also consider biodiversity when deciding whether to approve a major energy or infrastructure project under the federal Impact Assessment Act or the provincial Environmental Assessment Act. Again, the focus is on avoiding harm to specific species on a project-by-project basis.
Following the Global Biodiversity Framework there have been calls for Canadian governments to be more proactive and accountable – not just by preventing the demise of certain species but by protecting and enhancing wider ecosystems.
In response, in December 2023, the Government of Canada committed to introducing a nature accountability bill in 2024. The Bill is intended to establish a framework for the federal government to fulfill its nature and biodiversity commitments under the Global Biodiversity Framework – including the ambitious goal of protecting 30% of land and water by 2030. Canada intends to provide concrete steps from now until 2030 to implement its commitments, including requirements to develop Canada's 2030 Biodiversity Strategy and report on its implementation. This approach follows in the footsteps of another federal act, the Net-Zero Emissions Accountability Act, which attempts to hold Canada's "feet to the fire" so to speak, on its international climate commitments.
The push for nature accountability is also driving local land use planning. For example, in Ontario, provincial planning policies like the Greenbelt Act and Plan have protected farmland and natural heritage systems around the Greater Toronto Area from development. Following an attempt to carve out sections of the Greenbelt for development, there was public backlash, leading to the Greenbelt Statute Law Amendment Act, 2023, which came into effect on December 6, 2023. The Act restores all 15 areas of land that were re-designated or removed from the Greenbelt in December 2022.
England and Wales: mandatory biodiversity net gain requirements for local planning
Over the past 18 months, biodiversity has also been a key topic for local planning in England and Wales. Most importantly, there have been proposals to bring in a mandatory requirement for at least a 10% biodiversity net gain (BNG) to be provided as a part of planning applications[1] under the Environment Act. Associated with this has been consideration of how this will look in practice and the rules and regulations governing the provision of B.
The 12 February 2024 marked the point at which the mandatory requirement for at least 10% BNG came into force. From this date, in simple terms, unless exempt, planning applications in England and Wales will be subject to the mandatory BNG. The mandatory BNG does not apply to applications made before 12 February 2024 nor applications to vary existing planning permissions . Prior to the 12 February 2024, some local planning authorities had adopted their own policies with regards to BNG but the vast majority did not. It is important to note that some of these policies already include 20% BNG targets, and more local planning authorities are looking to implement their own policies with BNG targets above the mandatory requirement. The Wildlife and Countryside Link have produced this table which sets out those local planning authorities that are implementing or considering ambitious BNG targets, with some considering targets of 30%.
BNG will require a baseline calculation of a site's (pre-development) biodiversity using the statutory biodiversity metric tool and a biodiversity gain plan, which will have to be approved prior to development works commencing, setting out how the BNG will be delivered. There will be a BNG hierarchy which requires delivery: onsite (within the development site), offsite (whether on a developer's own land, or by buying units from third parties or by purchasing statutory credits from the Government.
Although the development industry has had notice that BNG will be coming forward, the details of how individual local planning authorities are going to deal with BNG are still evolving. Development proposals will need to be kept under review, particularly in local planning authorities where there might be a higher than statutory BNG requirement. A further area of consideration is the capacity of local planning authorities and the establishing of responsible bodies to deal with BNG, not only as part of planning applications but also the added work that will be required around the forms of BNG provision such as third parties establishing offsite habitat banks for the sale of BNG units.
Conclusion
Overall, governments in Canada and the UK are reacting to the Global Biodiversity Framework and the public's interest in protecting nature. In both jurisdictions, these trends are affecting local planning policies. In the UK, this has translated into novel ways to enhance nature when development occurs. Meanwhile, in Canada, there is a push for greater accountability of both federal and provincial governments to protect nature. This area is developing rapidly. Stay tuned.
For more information, please contact Ben Stansfield, Emma Cartledge-Taylor or Liane Langstaff.
Footnotes:
[] Biodiversity net gain - the final pieces of the jigsaw
[] The mandatory BNG will not apply to applications made under section 73 of the Town and Country Planning Act 1990 (as amended) where the earlier permission was submitted or granted before 12 February 2024.
[] Calculate biodiversity value with the statutory biodiversity metric
[] Biodiversity gain plan
[] Organisations eligible for designation are a local authority, a public body or charity (where at least some of its main purposes or functions relate to conservation), or a private sector organisation (where at least some of its main activities relate to conservation) and further eligibility criteria has been issued by the Department for Environment, Food & Rural Affairs.