Top 5 things to know about Biodiversity Net Gain
Biodiversity net gain (“BNG”) is now an integral part of the planning system, mandatorily applying to all applicable developments and requiring at least a 10% uplift of the biodiversity value of the site post-development.
BNG is a point to be considered at site acquisition and appraisal stage, as well as being factored into the design and planning application. Here are five key points to know for those developing land which will be subject to the BNG requirements:
1. Planning permissions granted or applied for before the BNG regime took effect are not subject to the statutory requirements.
The BNG regime took effect on 12 February 2024 for the majority of sites, and 2 April 2024 for small sites.
A planning permission already granted before the obligations take effect will not be subject to the BNG requirements. Equally, a planning permission applied for before the above dates, but granted afterwards, will also not be caught. As a follow on consequence, if such a planning permission is later varied by section 73, that variation will likewise not be subject to the BNG obligations.
2. It is not necessarily easier to meet the BNG requirements on brownfield land.
The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline. The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
3. The BNG regime applies even where the relevant condition is not imposed on the face of the permission.
The pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. The government guidance on BNG provides councils with a standard form of wording to include as an informative on the decision notice, with the aim of not introducing conditions conflicting with the statutory requirements.
It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes.
4. It is possible to phase a planning permission for BNG purposes.
Phased development for BNG purposes refers to either (i) outline permission where the reserved matters permit or require the development to come forward in phases; or (ii) any planning permission subject to conditions which permit or require the development to come forward in phases.
Permission for phased developments will be granted subject to the planning conditions requiring the following:
- An overall biodiversity gain plan will need to be submitted to the local planning authority prior to commencement of the development as a whole.
- No phase of the development can commence until a biodiversity gain plan for that phase has been submitted to and approved by the local planning authority.
If the preference is to phase the BNG delivery, this will need to made clear at application stage and it will be reflected on the decision notice.
5. Whilst the biodiversity gain plan will be secured by planning condition, details on the BNG strategy for the development and how the 10% gain will be secured must be submitted at application stage.
Applications for planning permission will need to include a statement as to whether the applicant believes that planning permission would be subject to the biodiversity gain condition and if not, why not.
Where it is considered that the BNG requirements are applicable, the following information will need to be submitted at application stage (non-exhaustive):
- The completed biodiversity metric calculation tool, showing the calculation of the biodiversity value of the onsite habitat.
- If any activities have been carried out on the site since 30 January 2020 which have lowered the biodiversity value of the site, a statement confirming those activities and the date when they were carried out.
- A plan showing the location of the onsite habitat included in the calculations and any irreplaceable habitat.
Sophie Smith is an Associate in our Planning Team and has a particular interest in the Biodiversity Net Gain regime introduced by the Environment Act 2021.
