Introduction
Biodiversity Net Gain (BNG) requirements will come into force in November this year and will require developers to deliver a BNG of at least 10% on new developments.
The government published its response to the BNG regulation and implementation consultation in late February.
The consultation covered three main areas:
- The scope of the Town and Country Planning Act 1990 (TCPA) requirement and proposed exemptions, development within statutory designed sites and irreplicable habitats
- Applying BNG to different types of development such as phased development, small sites and NSIPs
- How mandatory BNG will work for TCPA development
A Summary of the Government’s Response
The response announced further exemptions for:
- Householder applications
- Developments that impact habitats of an area below 25 metres squared or five metres for linear habitats such as hedgerows
- Small-scale self-builds and custom-build housing, excluding large-scale sites made up of customer plots
- Biodiversity gain sites where habitats are being enhanced for wildlife
The response also highlighted that the government will work with the Department for Levelling Up, Housing and Communities (DLUHC) to develop planning policy for minor development such as householder and de-minimis development, to seek to secure proportionate on-site biodiversity enhancements where possible.
Irreplaceable Habitat
As part of the consultation, the government asked respondents for their opinions on proposals to exclude irreplaceable habitat from the quantitative mandatory biodiversity gain objective. Respondents expressed strong agreement with these proposals. Therefore, the government will use secondary legislation to set out a clear definition of irreplaceable habitat and a list of habitat types to be considered irreplaceable. This secondary legislation will also be used to disapply the 10% measurable net gain requirement for irreplaceable habitat, and to apply separate requirements that can be used by the planning authority in determining the planning application.
Are Local Planning Authorities ready?
Some respondents raised concerns about whether Local Planning Authorities are ready for BNG and whether they have the funding required. The government has announced that Local Planning Authorities will receive a further £16.71 million to help them prepare, in addition to the £4.18 million already allocated.
The response also announced that smaller sites will have a transition period so won’t need to comply with the new BNG requirements until April next year.
Nationally Significant Infrastructure Projects (NSIPs)
The government intends to apply BNG for Nationally Significant Infrastructure Projects without any broad exemptions other than the provision made for development on irreplaceable habitats. Due to their significant scale and complexity, it will be important to ensure Nationally Significant Infrastructure Project developments have sufficient time to incorporate BNG into their designs. Therefore, Nationally Significant Infrastructure Project developers will have until November 2025 to prepare.
A Nationally Significant Infrastructure Project applicant must clearly demonstrate that the BNG objective has been met through the examination process. So, the government intends to keep the Nationally Significant Infrastructure Project approach broadly consistent with the Town and Country Planning Act approach, meaning that developers or scheme promoters will need to prepare a form of biodiversity gain plan and a completed biodiversity metric.
Some Nationally Significant Infrastructure Projects need to include significant areas for environmental mitigation within their project boundaries. However, the government does not intend to make a distinction for Nationally Significant Infrastructure Projects between on-site habitats (which are subject to BNG) and any dedicated environmental mitigation areas included in the project boundary. There will be further consultation on this proposal through the draft biodiversity gain statement.
When Will BNG Need to be Delivered?
A BNG statement must be provided with the planning application and the biodiversity gain plan should be submitted and approved prior to the commencement of the development. Onsite gains are preferred to offsite gains, but some respondents raised concern about the timing of delivery. This was initially proposed to be within 12 months of commencement or before occupation, but the government will review this when drafting its detailed guidance. Developers will be permitted to sell excess gains on a development above the 10% requirement to another development.
How will BNG be recorded?
Natural England will be appointed as the operator of the Biodiversity Gain Site Register. It will sell statutory biodiversity credits on behalf of the Secretary of State and credit sales will be facilitated by a user-friendly digital sales platform.
An indicative credit price will be published six months in advance of BNG becoming mandatory and the government is currently assessing whether to vary the price by habitat type. The price will also be reviewed at six-monthly intervals in response to market data, with any price changes being indicated well in advance to allow developers to plan ahead.
Revenue credit sales will be invested by Natural England in strategic habitat creation and enhancement projects, which deliver long-term environmental benefits and an overall net gain in England.
The register will record allocations of all offset biodiversity gains which will be publicly available, with applications expected to take around six weeks. A registration fee will be chargeable, which is yet to be confirmed, but is likely to be between £100 and £1,000, and fines will be given if inaccurate information is provided.
What Happens After 30 Years?
The proposals require biodiversity gain sites to be secured for a minimum of 30 years. The government is encouraging these sites not to be taken out of conservation management, but at the end of the initial period, a new baseline will be taken, and the land re-entered into the BNG market. The government is exploring several incentives to encourage this, including tax relief.
If you would like to find out more about how BNG will affect your future developments, contact us on 01225 459564 or email enquiries@engain.com