Biodiversity net gain planning regime set for England from 2024

Fiona Ross, Jan Bessell, Arunsiri Doheny-Adams, Yasmin Cherry, Imogen Dewar, and Ellen Preston-Gelderd of Pinsent Masons advised the action after new draft regulations and guidance were introduced that are expected to bring the new BNG regime into effect from 1 January 2024 in respect of most new major developments under the Town and Country Planning Act 1990 (TCPA), and from April 2024 in respect of development classed as “small sites”.

The new draft regulations build on BNG provisions that are contained in the Environment Act 2021. Those rules require that developers of projects to be consented under the TCPA or the Planning Act 2008 must deliver a minimum 10% BNG in the context of their developments.

Under the new regime, developers promoting projects under the TCPA must discharge a new general BNG planning condition and the local planning authority (LPA) must approve a biodiversity gain plan relating to the development in line with specific requirements. A biodiversity gain plan may be submitted to the LPA once planning permission is granted, following which the LPA will have eight weeks to approve or refuse the plan in writing. Approval by the LPA amounts to a discharge of the condition. A biodiversity gain plan template has been published by the Department for Environment, Food & Rural Affairs in readiness of the regime taking effect.

Habitat enhanced or created to deliver BNG will need to be secured, maintained, and monitored for at least 30 years. Natural England has now published a habitat management and monitoring plan template to guide this process.

Similarly, promoters of nationally significant infrastructure projects (NSIPs) under the Planning Act 2008 regime will face a new requirement to meet a BNG objective, to take effect after the government has published a biodiversity gain statement, or statements, that set out the details of the objective. For NSIPs, once the new arrangements are in place, the relevant Secretary of State will not be able to grant an application for development consent unless satisfied that the project concerned can meet the biodiversity gain objective. It is expected that the biodiversity gain statements will be consulted on in March 2024, with a final version – together with NSIP-specific guidance – due to be published in September 2024.

Ross said: “The fact that the legislation and further guidance has only been published at the end of November 2023 means that there is a lot more detail for both developers and habitat bank operators now to grapple with, only a short time in advance of the regime going live. The government had originally said that it would publish draft legislation a year in advance.”

Under the new regime, developers will be able to refer to a hierarchy of measures to achieve BNG, with the option of purchasing biodiversity credits from the Secretary of State as a last resort. Biodiversity gains and losses on developments will be measured in ‘biodiversity units’, which in turn will be determined by reference to the type, extent and condition of habitats. It will be possible for developers to deliver on their BNG requirements on an ‘off-site’ as well as ‘on-site’ basis.

Ross said: “Whilst there has been notable activity in the BNG market already, with various parties setting themselves up as offsite habitat banks, there is still a risk of a lack of availability of offsite units in some locations.”

Ross added that local planning authorities are still grappling with the BNG regime themselves – including how to effectively police and enforce it – and that this is likely to cause some challenges for developers.