Biodiversity Offsetting – what impact will ‘offsetting’ have on ancient woodland?

One of our key principles for any biodiversity offsetting scheme is that ancient woodland should not be part of it. There are two questions within the Government’s offsetting Green Paper which offer support to that view, shown below with our view at this stage:

  • Do you agree with the proposed exceptions to the routine use of biodiversity offsetting? If not, why not? If you suggest additional restriction, why are they needed?

In the consultation Defra has identified a number of existing constraints on development including ancient woodland and SSSIs. We agree that any new offsetting scheme should not override pre-existing protection provided through planning legislation and the National Planning Policy Framework (NPPF) specifically mentions that ancient woodland and trees should be given special consideration within planning decisions.

  •  Which habitats do you think should be considered irreplaceable?

The consultation identifies ancient woodland and limestone pavement as irreplaceable habitats which should not be part of offsetting. We agree with this, and would also add that any habitat which takes 100 years or more to reach a fully functioning ecosystem should be recognised as being irreplaceable and therefore not be considered as capable of being offset.

So given all this support for the unique values of ancient woodland, you would expect me to be happy with the proposals for ancient woodland within the Green Paper, and I am, but I also refer you to the “get out” clause within the NPPF:

“planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss.”

Bluebells at Narrow Water Castle, Northern Ireland

Bluebells at Narrow Water Castle, Northern Ireland

This caveat, or loophole, has led to situations such as the loss of woodland at Oaken Wood and the ongoing threat to over 380 ancient woods within England. Planning is a democratic process and within the current constraints of the planning system there will continue to be occasions when the democratic imperative decides that ancient woodland is to be lost in favour of the development proposal. When this happens, is there a role for an offsetting scheme?

In the scheme foreseen in the Green Paper biodiversity offsetting does not put a specific price on nature, but uses a complicated metric to calculate how much habitat must be created or restored in order to compensate for the area of habitat lost. An initial version of the metric was developed by Defra and is currently being trialled the six offsetting pilots which the Government is supporting. This offsetting metric uses a number of criteria to assess the value of the habitat to be lost;

  • distinctiveness;
  • quality;
  • size;
  • risk associated with restoration;
  • time to restoration; and
  • location of potential receptor site.

This calculation results in a number representing “biodiversity units” that need to be delivered as compensation. At its simplest this can be seen as a ratio of lost habitat to created habitat; 1:5, 1:10 etc.

However, the current metric applies maximum values to these calculations, for example, time allotted for restoration only allows for a maximum of 32 years and translates this into a requirement to multiply the number of biodiversity units by 3; and yet the same document lists the time for restoration of ancient woods as between 500 and 2000 years and then goes on to cast doubt as to whether it is possible to achieve restoration/recreation. This is very confusing for all concerned.

Obviously re-creating ancient woodland is impossible. As I’ve said, any habitat which takes 100 years or more to reach a fully functioning ecosystem should not be considered as capable of being offset. The Woodland Trust believes that for any irreplaceable habitat the offsetting metric should not be used, instead a bespoke response should be developed which results in a ratio of more than the maximum currently suggested under the offsetting metric. So, for every one hectare of ancient woodland lost or damaged through development we would want to see at least 30 hectares of new woodland created, managed and protected. Is this practical? Maybe not, but will this make developers think twice before they consider trashing ancient woodland? Hopefully!

I will return to more of the key issues in further blogs and explain some of the risks and opportunities we see in the proposed scheme:

  • Localism and what matters to a community when losing, and gaining, a habitat
  • Management and compensation packages in an offsetting scheme

In the meantime you can find further information about the consultation, and our concerns, here. We all have until November 7th to get our responses in!  Please add to the debate below – but do make sure you tell Defra what you think too!

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Frances Winder, Conservation Policy Adviser

About Kaye Brennan

Senior Campaigner (Policy & Advocacy) for the Woodland Trust and Administrator, 'Woodland Matters' blog
This entry was posted in Campaigning, Climate Change, Conservation, Consultation, Defra, England, Planning and tagged , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

13 Responses to Biodiversity Offsetting – what impact will ‘offsetting’ have on ancient woodland?

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  4. andybodders says:

    I really don’t think we should be going down this route. I don’t think politicians have a clue what the outcomes will be. Biodiversity offsetting set to reward for everyone’s bottom line from the developer to the provider, but I am not convinced it is beneficial for nature’s bottom line.
    I’ve written more on this on Lib Dem Voice and would welcome opinions:
    http://www.libdemvoice.org/nature-cant-be-shuffled-around-like-politicians-or-for-profit-36808.html

  5. Pingback: Biodiversity Offsetting – what impact wil...

  6. This is a very well-thought-out and well-reasoned article, and there is only one flaw in it which arises from a common error made by a lot of Planners, Planning Officers and even Planning Inspectors – who are not lawyers. I have just come from a Residents Group meeting with two Senior Planners who kept alluding to the NPPF as “the Law” and “the Law says”. I did not correct them. It seemed rude. It needs a swingeing, general, correction every five minutes of every day, like a sort of national drip-feed. I do not know how to construct such a fantastical, “Heath Robinson” type of engine – but that is what it needs.

    The NPPF is not a Law of any kind. It is not a Statute – the highest form of Law – but it is not any other form of Law either (Equity or Common Law are the other two forms in this country). It does not even look like a Law, to anyone who has seen a Statute. Also, it does not use the word “shall” all the time, like a Statute (this comes out as “must” in reported speech quoting any Statute). In fact it does not use the word “shall” at all. Instead it uses “should”. That tiny shift represents the massive difference between a command and a recommendation. And between Law, and non-Law.

    In any case the NPPF tells us itself that it is not Law at para 13, where it describes itself as Guidance. Footnote 8 directs us to a list of the Guidance “documents” (not laws) which it replaces. The footnote adds that “section 19(2)(a) of the Planning and Compulsory Purchase Act 2004 states that in relation to plan-making the local planning authority must have regard to national policies and advice contained in the Guidance issued by the Secretary of State.” Yes – amongst other things, and after obeying any Laws operating. Guidance is not Law – you “have regard to it” – but you can dismiss it for various reasons, including actual Laws. You cannot dismiss Law however, and that is what people are doing when they use the NPPF to brush aside more than one Statute Law and UN Convention.

    So the NPPF is not Law of any kind. It merely encapsulates various Laws, without mentioning them. And in some places it uses a legal form of words out of context. E.g. “unless the need for and benefits of the development in that location clearly outweigh the loss”. This “balancing exercise” is in UK Planning Law or more likely Guidance – but not in international Environmental Law and in the UK Statutes and EU Directives conveying it. If Planners insist on doing a balancing exercise because that is what they have always done since 1990, they must go on a course to find out what the UN says they are supposed to be doing. Because at the moment, most of them are law-breakers – unintentionally, through ignorance. But ignorance of the Law is no excuse, it is said.

    The NPPF Guidance is totally trumped by any Laws that run counter to any of what it says. And many Laws do – these are the big international Conventions which have been translated into UK law via EU Directives for the most part (apart from the Planning (Listed Buildings and Conservation Areas) Act 1990.

    In a rare reference to an actual Law, the NPPF refers in footnote 7 to para 11 on page 3, to Section 38(6) of the Planning and Compulsory Purchase Act 1990. This section says that, to quote NPPF section 11, “Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.” “Unless material considerations indicate otherwise” – yes, and nearly every material consideration on the planet does indicate otherwise for most major developments including several major written Laws of the UN, EU, and UK. Why? – because we are heading for an environmental catastrophe, and have been for decades. Wake up Planners! This is the 21st century, believe it or not.

    This is why local authority development plans have suddenly been kicked out of the way by the Localism Act and its Neighbourhood Plans. (Or ought to have been kicked out of the way by the Localism Act used properly.) All that Neighbourhood Plans have to do, is conform with the LDF – and LDFs, if you read them, spout masses of empty words about the Environment which are then consigned by the very LPA that wrote the LDF to the flames of the economic “imperative” (which does not exist in Law).

    Finally, the whole misuse of the NPPF is based on a misinterpretation of the phrase “Sustainable Development”. Yet the NPPF gives the proper UN definition itself, right at the beginning. In a pretty blue box. Planners and Developers are reading the definition, and then tearing it up mentally by fondly imagining that sustainable development is something with a few solar panels and a bit of greenery thrown into the mix. What the UN definition means, is that the Developed Nations are already unsustainable, and that if the Developing World is not careful, it too will become unsustainable. There is no getting away from the fact that that is what it means – so instead the definition is just ignored. S’easy when you know how.

  7. Andy White says:

    Offsetting is nothing less than a license for the planners to destroy whatever they please with a clean conscience. ‘Special consideration’ means they’ll take the decision to do so over lunch instead of in their tea break.

  8. king1394 says:

    It’s clearly understood (surely) that you cannot plant a 300 year old tree, it takes 300 years to get one. It’s also clear that complex ecosystems cannot be replaced through revegetation (and possibly can never be fully restored once removed). To suggest that protecting a swathe of land in one location, even nearby, is enough to counteract the loss of a separate piece of ancient forest is a nonsense.
    Where I live (NSW Australia) we have some off-setting rules in place which have seen new plantings of hundreds of endangered trees (barely saplings) to off-set the removal of one or two, and most people think this is an advance. But the habitat values of big old trees are not being restored.

  9. richard markjham says:

    i think the whole thing is a total waste of money -and should be scapped

  10. alvecotewood says:

    Local people should have the final say in whether offsetting should be allowed, and if so, what type of offsets and where they should be located. I would like to see Ancient Woodland given absolute protection. Sadly this type of protection doesn’t exist – even SSSI’s, national parks and other areas of national and international importance are threatened by the economic imperative. Given this, I think the financial penalty should be set very high, to make it economically much harder to trash ancient woods. I also think that the value of the habitat should be set as the maximum achievable value of that habitat, and not just its current value. Otherwise it is a licence for developers to buy, hold on to, and neglect land so its value deteriorates and offsetting becomes cheaper. An ancient woodland, well-managed, with both sustainable produce and social and environmental benefits that are properly costed would almost certainly be of much greater value than another Tesco/quarry/road/housing development.

  11. Peter Kyte says:

    It will all be down to profit. In a just, democratic society that should not happen. I would like see developers have to donate one third of any profit they make, from the development, to environmental charities, every time a development is given the go ahead on any ancient woodland site. That would also include any road building or other transport links. To be paid out before any work starts.

  12. ahardy66 says:

    “unless the need for, and benefits of, the development in that location clearly outweigh the loss.”

    Who decides that, and what degree of rigor, scientific basis and economic time-scale will they be using? Will they weigh up the ‘invisible’ economic benefits to the community and country as well?

    It should be defined.

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