Biodiversity Net Gain Update
Cornerstone Climate, Planning and Environment
Further to the webinar provided by Estelle Dehon KC, Emmaline Lambert and Joe Cannon in September 2023, there has been activity in this area and Cornerstone Barristers provide the following update.
New draft regulations and guidance were introduced on 29th November 2023 bringing 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 (“the 1990 Act”), 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 projects to be consented under the 1990 Act or the Planning Act 2008 must deliver a minimum of 10% BNG. Guidance can be found in the accompanying Planning Practice Guidance which has also been updated.
Under the new regime, developers 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.
Helpfully, DEFRA has published a biodiversity gain plan template.
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.
The measures must be delivered in accordance with the biodiversity gain hierarchy. Unless a development is exempt, BNG must be delivered: onsite (within the redline boundary of the development site); offsite; or by 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.
The draft Regulations and guidance do not contain any significant changes from previously published policy but it is expected that, as teething problems occur, there are likely to be some minor changes to the regime during 2024.
