17th January 2022
Senior associate Matt Gilks reviews government proposals aimed at ensuring developers deliver at least 10% biodiversity net gain increases on new developments from November 2023.
The Department for Environment, Food and Rural Affairs (Defra) has opened a consultation into the detail of the implementation and planning regulations for the forthcoming roll-out of mandatory biodiversity net gain (BNG) for new development in England.
BNG is an approach to development and/or land management that aims to leave the natural environment in a measurably better state than it was beforehand. Paragraph 180 of the National Planning Policy Framework already states:
“Opportunities to improve biodiversity in and around developments should be integrated as part of their design, especially where this can secure measurable net gains for biodiversity or enhance public access to nature where this is appropriate.”
In a couple of years the overwhelming majority of building developments permitted in England will be subject to a new BNG pre-commencement condition.
The mandatory BNG requirement will be imposed by regulations to implement the new section 90A and Schedule 7A into the Town and Country Planning Act 1990 introduced by the Environment Act 2021.
The new law will impose a minimum BNG uplift for most new-built development of no less than 10% on the pre-development biodiversity value. The requirement is framed as a pre-commencement condition, meaning the BNG condition must be discharged before development can begin. To discharge the condition, the planning authority must approve the development’s biodiversity gain plan.
The government expects this mandatory BNG for development to commence for new applications in or around November 2023.
The consultation covers:
Among the proposals are: making exemptions for developments impacting habitat areas below a minimal threshold of negligible impact; householder application; self-build and custom housebuilding; change of use applications; and developments which are undertaken exclusively for mandatory biodiversity gains.
The consultation also sets out proposals for how BNG is delivered when outline permission is granted and for section 73 application for the variation of planning permissions.
The government has confirmed that its intention is to simplify biodiversity metrics for 10% BNG for sites of fewer than 10 residential units or an area of less than 0.5 hectares for other types of development (unless priority or protected habitats are present). However, it is consulting on an extended transition period for these sites.
There are also important consultation proposals for the level of biodiversity information required at the planning application stage. The consultation, which can be found here, closes on 5 April 2022.