Biodiversity Net Gain

On 29 November 2023 the government published six draft statutory instruments which set out details for the new mandatory biodiversity net gain (BNG) framework.

What is BNG?

The Government has described BNG as 'making sure the habitat for wildlife is in a better state than it was before development'. In short, complex metrics will be applied to calculate how much habitat needs to be provided to achieve the 10% net gain required by the legislation. BNG can be delivered through any one, or a combination of, on-site and off-site units and statutory credits. Statutory credits will be purchased from the government and will be available as a 'last resort' where developers are unable to use on-site or off-site units to deliver BNG.

When does it come into effect?

A BNG planning condition will be deemed to apply to developments that come forward in England following planning applications submitted ‘from January 2024’* (with certain 'small' sites following in April 2024). There are only very limited minor exemptions. There are also commencement and transitional arrangements in place.

*The exact date in January is yet to be confirmed.

Once the new regime is in force the BNG deemed condition specifies that development may not begin unless a biodiversity gain plan has been submitted to the planning authority and the planning authority has approved the plan. However, the draft planning practice guidance makes it clear BNG should be considered at an early stage and throughout the planning process and should be factored into site selection and design. The guidance also encourages engagement with local planning authorities before the application is submitted. It is a detailed and technical regime and the costs and expertise needed to comply with the new regime should be carefully considered.

BNG will also apply to Nationally Significant Infrastructure Projects from November 2025. The government notes that ‘to support their readiness, we will consult on the biodiversity gain statement in March 2024 and publish a final version, alongside further NSIP guidance, in September 2024.’

What do the draft statutory instruments do?

Together the draft statutory instruments set out set out some of the key details for BNG. The government notes that:

• The Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024 contain further amendments to existing legislation in order to implement the new regime. These amendments include the definition of a planning authority under Schedule 7A to the Town and Country Planning Act 1990 which sets out the BNG framework.

• The Biodiversity Gain Site Register Regulations 2024 allows for a new, publicly available “biodiversity gain site register”. This will be a record of the off-site BNG commitments that have been entered into. The register will be established and operated by Natural England.

• The Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024 allows for fees to be charged for applications to register land in the biodiversity gain site register and allows the register operator (Natural England) to issue financial penalties of £5,000 where false or misleading information is provided.

• The Biodiversity Gain Requirements (Exemptions) Regulations 2024 exempt certain developments from meeting the biodiversity gain requirement that would otherwise be imposed as a general condition of planning permission. These include a temporary exemption for small developments where an application for planning permission is made or has been granted before April 2024; development with no impact on priority habitat and where impacts fall below the specified ‘de minimis’ threshold; householder applications; the high-speed railway network; off-site gain developments and certain self-build and custom build developments.

• The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 set out the list of habitats to be considered irreplaceable for BNG metric calculation purposes and ensures that the regular 10% requirement is not applied to them. They set out alternative arrangements that must be made to minimise the adverse effect of a development on the biodiversity of the irreplaceable habitat onsite.

  The government has stated that there will be a public consultation on
  the definition of irreplaceable habitats in 2024.

• The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024 make various amendments to existing provisions and sets out ‘how the new BNG framework sits within the development management process for planning applications’.

  The government notes that ‘this includes the content and form of the
  BNG plan, the procedure for submission and approval of the plan, as
  well as who should approve the plan’. The Regulations specify that
  local planning authority ‘should determine the plan within 8 weeks
  unless an alternative period is agreed’.

  The regulations set out the process for making an appeal relating to
  the determination of the BNG. They also set out the ‘biodiversity gain
  hierarchy’ which planning authorities must take into account when
  reviewing biodiversity gain plans. On-site gains are at the top followed
  by off-site gains. As noted above the purchase of statutory credits is viewed as a last resort and they have been deliberately priced accordingly.

  It also details ‘modifications to the BNG framework for planning
  permissions where development will occur in phases, to ensure that
  BNG is achieved over the whole development’.

Is there any accompanying guidance?

Yes – in addition to the Regulations, on 29 November 2023 several pieces of draft guidance were also issued by various bodies:

DEFRA guidance

Department for Levelling-up, Housing and Communities draft biodiversity net gain planning practice guidance. This guidance provides a very useful, detailed and technical overview of the regime.