Biodiversity Net Gain (BNG) requirements will come into force in November 2023. This will require developers to deliver a BNG of at least 10% on new development. Last week the Government published its response to the 2022 consultation.
The response announced further exemptions for:
- Developments that impact habitats of an area below 25 metres squared or 5 metres for linear habitats.
- Household applications.
- Small-scale self-builds and custom build housing (to exclude large-scale sites made up of custom plots).
- Biodiversity gain sites (where habitats are being enhanced).
The Government is looking at developing a policy that requires exempt sites to secure proportionate onsite biodiversity enhancement where possible.
How will BNG work where the original permission was granted pre-BNG requirements and a Section 73 permission is granted after?
The requirement will only apply to Section 73 consents where the original permission was granted after the commencement of the mandatory BNG requirement.
Are Local Planning Authorities (LPAs) ready?
There appeared to be concern from respondents about how ready LPAs are. After all, they are already struggling with resources. LPAs will receive further funding of £16.71million to help them prepare. This is in addition to the £4.18 million already given. The response also announced that smaller sites will have a transition period so won’t need to comply with the new BNG requirements until April 2024. Smaller sites are defined as developments with less than 10 dwellings and having an area of less than 1 hectare or, where the number of dwellings is unknown and have an area less than 0.5 hectares. For non-residential sites, it will mean a floor space of less than 1000 sqm or the site area is less than 1 hectare. Nationally Significant Infrastructure Projects (NSIPS) will be subject to the requirements of BNG from no later than November 2025 following a further consultation.
When will the BNG need to be delivered?
A BNG statement is to be provided with the planning application and the biodiversity gain plan is submitted and approved prior to the commencement of the development. Onsite gains are preferred to offsite gains but there was some concern about the timing of delivery. This was proposed within 12 months of commencement or before occupation. The government will review this when drafting its detailed guidance but envisages that this will be influenced by the LPAs themselves via conditions and obligations or conservation covenants. Further details are awaited in relation to preventing front loading of the BNG requirements on phased developments via secondary legislation. Developers will be permitted to sell excess gains on a development above the 10% requirement to another development.
What happens after the initial 30 years have passed?
The proposals require the biodiversity gain sites to be secured for a 30 year minimum so, if you are intending to offer your land as a biodiversity gain site, you may be tying it up for more than 30 years. The Government is encouraging these sites not to be taken out of conservation management but at the end of the initial period, a new baseline is taken, and the land re-entered into the BNG market. They are looking into a range of incentives to encourage this including tax incentives.
How will it all be recorded?
Natural England is to be appointed as the operator of the Biodiversity Gain Site Register. This register will record allocations of all offsite biodiversity gains which will be publicly available. Applications for registrations are likely to be around 6 weeks. A binding legal agreement to secure the delivery of a gain is a prerequisite to registration. Guidance is awaited on what is expected to be considered in these agreements. A registration fee will be chargeable which whilst not yet determined is likely to be between £100 and £1,000. Fines will also be in place for providing inaccurate information. The planning enforcement regime will be the principal way for enforcing the delivery of BNG.
