We are still awaiting a final date from the Government, but in January 2024, all major development in England will be required to deliver 10% Biodiversity Net Gain.
On 29th November 2023, the Government published draft guidance and regulations on Biodiversity Net Gain (BNG) to ‘enable familiarisation’ ahead of the regulations coming into force.
The draft Planning Practice Guidance (PPG) is subject to change before it is finalised, but below is a summary of the key headlines to be aware of in the meantime:
Planning Permissions in Scope
Biodiversity net gain will apply to major applications made after the Regulations are made. Permissions granted for applications made before this date will not subject to biodiversity net gain.
The approval of reserved matters for outline planning permissions are not within the scope of biodiversity net gain (as they are not a grant of planning permission).
An application to vary a condition of a planning permission under section 73 is only in scope if the development and conditions attached to a new planning permission will affect the post development biodiversity value of the original application. Any section 73 applications where the original permission was granted or made before the statutory framework commenced will not be in scope in any event.
The Government has said that the mandatory requirement will be extended to small sites in April 2024 and Nationally Significant Infrastructure Projects in 2025.
There are a range of exemptions, that mean that certain permissions will not subject to biodiversity net gain. These are set out in the draft PPG and include householder developments and self-build and custom build development.
An application must be accompanied by the following minimum information to be validated:
- A statement as to whether the applicant believes that planning permission would be subject to the biodiversity gain condition;
- The pre-development biodiversity value of the onsite habitat on the date of application (or an earlier date) including the completed metric calculation;
- Where the applicant wishes to use an earlier date, the proposed earlier date and the reasons for proposing that date;
- A statement confirming whether the value of the onsite habitat is lower on the date of application (or an earlier date) because of the carrying on of activities (‘degradation’), as the value will be taken from before degradation;
- A description of any irreplaceable habitat (as set out in the Regulations) on the land to which the application relates; and
- A plan showing onsite habitat existing on the date of application (or and earlier date), including any irreplaceable habitat.
Further information may be needed, particularly where there are significant onsite biodiversity enhancements or use of offsite biodiversity gains. Specific further requirements may be set out in local authority local validation requirements.
Under the statutory framework for biodiversity net gain, every grant of planning permission (not covered by an exemption or transitional arrangement) is deemed to have been granted subject to a general biodiversity gain condition.
This is unlike other conditions which are applied individually to decisions and to ensure applicants are clear about the distinction the local planning authority must provide information about this condition separately to the list of other conditions within the decision notice – model paragraphs are to be provided.
The general biodiversity gain condition is a pre-commencement condition and once planning permission has been granted, a Biodiversity Gain Plan must be submitted and approved by the planning authority before commencement.
There are special modifications for planning permissions for phased development and the treatment of irreplaceable habitats.
Biodiversity Gain Plan
A Biodiversity Gain Plan will need to be submitted and approved by the planning authority to discharge the general biodiversity gain condition prior to the commencement of development.
A template is to be provided, and guidance is provided on the content. The statutory biodiversity metric calculation tools must be submitted as part of the Biodiversity Gain Plan.
As with all discharge of conditions, the authority will have 8 weeks to approve the Plan (unless another timescale is agreed). The usual fee will apply for the written confirmation of compliance with a condition, currently £145.
The Regulations are modified for phased development with the requirement for an:
- Overall Biodiversity Gain Plan – before any development can begin
- Phase Biodiversity Gain Plan – for each phase before that phase can begin
The Biodiversity Gain Hierarchy must be taken into account of when determining the Biodiversity Gain Plan. This emphasises that onsite biodiversity gains should be considered first followed by registered offsite biodiversity gains and – as a last resort – biodiversity credits.
Commencing development without approval of the Biodiversity Gain Plan will be a breach of planning control.
Planning obligations can be agreed to deliver significant on-site biodiversity enhancements, registered off-site biodiversity gains and the use of statutory credits. They can cover management and monitoring arrangements and dealing with excess net gains to be used for other developments.
Local authorities are encouraged to consider potential planning obligations when updating their local validation lists. For example:
- where significant onsite biodiversity enhancements are planned, then a draft Habitat Management & Monitoring Plan may be requested, setting out long term maintenance proposals to be secured through condition or obligation.
- where an off-site biodiversity gains site is needed, then draft heads of terms for the Section 106 may be requested.
Pre-Development Biodiversity Value Surveys
Surveys of the development site, to calculate the pre-development biodiversity value of the onsite habitat, should ideally be done shortly before the submission of the planning application. Older surveys can be used where there has been no material change to the onsite habitat.
The PPG includes guidance on how habitat degradation is dealt with when calculating the pre-development biodiversity value.
The determination of the Biodiversity Gain Plan is the mechanism to confirm whether the development meets the biodiversity gain objective. Development may not be begun until the Biodiversity Gain Plan is approved.
It is therefore generally inappropriate for decision makers to refuse an application on the grounds that the biodiversity gain objective will not be met.
Decision makers may however need to consider whether the general condition is capable of being successfully discharged, the appropriate balance between onsite and off-site gains and whether the type and location of any significant onsite habitat enhancements are appropriate.
Plan-makers should highlight the statutory framework for biodiversity net gain, but they do not need to duplicate it in local policies.
Policies should complement the statutory framework and avoid policies which are inconsistent for example encouraging the use of a different biodiversity metric or hierarchy.
Policies can seek a higher percentage across an area or for specific allocations where evidenced, support appropriate local offsite biodiversity sites and identify specific allocated sites where biodiversity enhancements can support other developments.
The full draft PPG text can be viewed here: https://www.gov.uk/guidance/draft-biodiversity-net-gain-planning-practice-guidance