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31 March 20234 minute read

Biodiversity Net Gain (BNG): Consultation Response

In February 2023, the Government published the statement of response for last year’s consultation, “Biodiversity Net Gain Regulations and Implementation.” While further guidance is to be published throughout the Spring, some of the key points to note from the statement of response in relation to Town and Country Planning Act 1990 (TCPA) developments are summarised at points (1) to (5), below. To a large extent, further information is still awaited in respect of Nationally Significant Infrastructure Projects (NSIPs). However, the emerging details are described at point (6).


1. Introduction of BNG requirements

BNG requirements will apply from November 2023 for TCPA developments, unless exempt. However, the requirements will not apply to small sites until April 2024, giving local planning authorities (LPAs) and smaller developers more time to prepare. Small sites for these purposes include residential sites of between 1 and 9 units on a site of less than one hectare or, where the number of units is not known, residential sites of less than 0.5 hectares. Non-residential sites with a floor space of less than 1,000 square metres or a site area of less than one hectare are also exempt. The statement of response also confirms that existing planning enforcement mechanisms will be the principal way of enforcing BNG delivery.


2. Phased developments and variations to permissions

For phased developments, the biodiversity gain plan (BG plan) must be approved before the commencement of each phase, although LPAs will have discretion on phasing of delivery to avoid rigid “front loading” requirements.

A section 73 application that changes the post-development biodiversity value will require an updated BG plan, with guidance anticipated to specify what amounts to a change requiring an update. This will apply where the original permission was granted after commencement of the BNG requirements.


3. Irreplaceable habitat

“Irreplaceable habitat” will be defined. The 10% BNG requirement will be disapplied for these habitats, with separate information requirements applying to assist LPAs in determining planning applications that affect irreplaceable habitats. The information required will include details of the habitat lost and an explanation of the reasonable alternatives considered.


4. Off-site provision

Developers will be able to sell excess biodiversity units generated on their development sites or use them as off-site gains for another development. Of broader application to the off-site market, habitat created or enhanced after 30 January 2020 will be eligible for registration and sale of associated biodiversity gains. Similarly, there will be no time limit on how long habitat banks can exist before allocation to a development. BG sites will be recorded in a register operated by Natural England, with the register to be open by November 2023. There will be a time limit for determination of applications to register, probably around six weeks, as well as an appeal process where applications to register are refused.


5. Statutory credit scheme

The consultation response confirms that the statutory credit scheme will be a “last resort” option and will be priced accordingly. To purchase credits, developers will have to demonstrate that they cannot deliver habitat onsite, or via the off-site market. Natural England will sell the credits, with an indicative price to be published six months before BNG becomes mandatory. Revenue from the sale of credits will be invested in strategic habitat creation and enhancement projects.


6. NSIPs

While projects will be encouraged to adopt BNG earlier on a voluntary basis, the BNG requirement for NSIPs will come into force by November 2025, with a draft biodiversity gain statement to be published and consulted on in 2023.

The statement of response confirms that there will be no broad exemptions for NSIPs, other than those in respect of irreplaceable habitats. Otherwise, it is expected that the TCPA approach will largely be mirrored, including the application of an earlier habitat assessment baseline if habitat is degraded. The indication is that no distinction will be made between on-site habitats (which are subject to BNG) and any dedicated environmental mitigation areas included in the project boundary for the purpose of calculating biodiversity value. However, the consultation response confirms that this approach will be subject to further consultation. Similarly, further guidance is anticipated to outline the reasonable alternatives that should be explored to deliver BNG before promoters consider the compulsory acquisition of land.

If you have any questions about the potential implications of the biodiversity net gain regime for your business, please contact Ian Graves or Henry Jeffreys.