DEFRA are currently consulting on proposals for the various legal requirements for the implementation of Biodiversity Net Gain (BNG).  Responses to the consultation need to be made by the 4th April 2022.  The responses to the consultation will shape the required secondary legislation.

There are three parts to the consultation document –

  • definition of the scope;
  • application of BNG to different development types;
  • how the mandatory BNG will apply to Town and Country Planning Act 1990 development.

The Scope

The requirement for a minimum of 10% BNG will be a pre-commencement condition that must be discharged before development commences.

To discharge the condition councils will need to approve the development’s BNG Plan.  The proposal is to require applicants to include BNG information in applications giving the pre-development biodiversity value, the proposed approach onsite and any offsite enhancements proposed.

The requirement will apply from November 2023, two years after Royal Assent for the Environment Act.

Natural England’s Biodiversity Metric 3 is expected to be the mandatory metric and there is to be a separate consultation on the metric.

BNG complements and works with the Biodiversity Mitigation Hierarchy –

  1. avoid or reduce biodiversity impacts through site selection and layout;
  2. enhance and restore biodiversity onsite;
  3. create or enhance offsite habitats;
  4. as a last resort to prevent delay, purchase statutory biodiversity credits from Government.

Exemptions

Exemptions to BNG are proposed for:

  • developments impacting on habitats below a de-minimis level;
  • householder proposals;
  • changes of use.

The Government is also considering exemptions for the creation of BNG sites and for self-build/custom build.

Responses are invited to de-minimis levels which will be the sum of habitat types on a site not the size of site.

It is now proposed not to exempt brownfield sites, temporary permissions or where permitted development not applicable due to the location in a Conservation Area, AONB or National Park.

For developments on statutorily designated sites for nature conservation, achieving BNG should not be seen or claimed as a justification for otherwise unacceptable development.

Application to Different Development Types

For outline applications and phased proposals, there will be additional requirements for biodiversity gain details to be submitted to explain the strategy for the whole site and how it will be delivered on a phased basis.  Target percentages for phases are expected to be front-loaded and there will be agreement of the pre-development biodiversity value for the whole site in the Framework Plan.

A simplified metric will be available for small sites of less than 10 dwellings or less than 0.5 ha for other development.

How it will work for Town and Country Planning Act Development

The core BNG information to be provided with an application is proposed to be mandated through regulation.  It will not be as complete as the BNG Plan but core information will include:

  • the pre-development biodiversity value;
  • steps proposed to minimise impacts;
  • proposed on-site approach;
  • any proposed off-site elements.

The consultation advises that higher percentage targets will be allowed to be set by local planning authorities at a local or site level but this should be made clear at an early stage of the planning or development process and careful consideration should be given to feasibility and achievability.

Onsite provision should be secured within 12 months of commencement or before occupation.

Offisite provision will be encouraged locally, and only where it is not locally available will provision outside the local area be allowed.  Provision will be secured through a Conservation Covenant.

Offsite gains must be maintained for 30 years.

Habitat Banking

There will be scope to complete works in advance and make the BNG area available to purchase.  Habitats created or enhanced after 30th January 2020 will be eligible.

Additionality

It is proposed that any measure onsite may be counted if the metric recognises an uplift – including onsite measures to comply with statutory obligations such as green infrastructure and sustainable drainage.

Mitigation for protected species can count but should not make up all the net gain – at least 10% should be of the gain should be separate activities.

Biodiversity credits will be sold as a last resort.

In terms of monitoring, monitoring and reporting procedures are proposed both for sites and across local planning authority areas, with local authority reports every 5 years.

Commentary

This is an important consultation with a series of questions on the detailed approach to BNG being considered by Government, and it is worthwhile considering making submissions.  Key issues include the proposal not to exempt brownfield sites and the intention to allow local planning authorities to set higher percentage targets.  There are also concerns over the limited proposed exemptions which mean that Section 73 applications could result in impacts on consented schemes that would be caught by a BNG requirement.

This article was written by Guy Longley, Executive Director. For more information about the contents of this article or about the Biodiversity Net Gain consultation, please contact us.