Exemptions to BNG are set out in Paragraph: 003 Reference ID: 74-003-2023 of the draft BNG PPG.
The BNG requirement will apply only to those applications submitted after BNG takes effect on 12 February 2024 (or 2 April 2024 for small sites). This includes applications made under s73 of the Town and Country Planning Act 1990 where the earlier permission was submitted or granted before the 12 February 2024. This is set out in Paragraph: 003 Reference ID: 74-003-2023 of the draft BNG PPG. There are a couple of reasons for this:
- BNG information will need to be provided at the applications stage to support an LPA to determine whether or not the BNG objective will be met. Accordingly, if this applied to all applications determined after 12 February/2 April 2024, there will be thousands of applications that would not include this information as it wouldn’t have been required beforehand.
- While BNG is dealt with as a post-permission matter through the mandatory condition, LPAs need to have clarity on the BNG position prior to granting permission so that they can put in place necessary planning conditions and obligations to secure it (the aforementioned information will support with this).
DLUHC intends to amend the national validation requirements in the DMPO so that applications for BNG-eligible development proposals are accompanied by minimum national information requirements set out in the draft BNG PPG
Paragraph: 009 Reference ID: 74-009-2023 and Paragraph: 010 Reference ID: 74-010-2023 provides further information on local lists and BNG.
Information on what is legally required at planning application stage and what further information may be needed to assist the consideration of biodiversity net gain as part of the planning application is set out in Paragraph: 009 Reference ID: 74-009-2023 of the draft BNG PPG.
We intend to provide more advice for LPAs on this in due course.
Schedule 14 of the Environment Act sets out that a general condition will be applied to every planning permission (except those exempt from BNG requirements) that a biodiversity gain plan should be submitted and approved by the planning authority before commencement of development, specifically:
Every planning permission granted for the development of land in England shall be… subject to the [following] condition: …the development may not be begun unless a biodiversity gain plan has been submitted to the planning authority… and the planning authority has approved the plan.
This means that a complete biodiversity gain plan will be required for all relevant development. It is important to note that the biodiversity gain plan must be submitted prior to commencement of development, but can not be submitted prior to the grant of permission. The draft PPG sets out more information on submission and approval of the biodiversity gain plan.
In relation to BNG, the Environment Act states that habitats should be secured for a minimum of 30 years: ‘habitat enhancement… will… be maintained for at least 30 years after the development is completed’. The 30 year term for biodiversity net gain isn’t meant to be regarded as in perpetuity – it was what was regarded as reasonable to ask for.
In some other cases, for example mitigation provided for sites or species protected under the Habitats Regulations, the requirement may be for management and maintenance of habitats ‘in perpetuity’. It will be up to the planning authority to determine the length of time that it is appropriate and reasonable to require ongoing management and maintenance of habitats as part of the grant of planning permission, taking into account the range of policy and legislative requirements, but the legal requirement for biodiversity gain habitats is 30 years as a minimum.
Further information on BNG alongside other environmental payments is available in Defra guidance.
This is not set in legislation and will need to be assessed by LPAs as part of their planning approval process. The minimum viable area for particular habitats will vary depending on the habitats in question.
Guidance available on delivering viable biodiversity improvements, including CIEEM’s Biodiversity Net Gain: Good Practice Principles for Development, A Practical Guide.
The biodiversity net gain approach embeds a fundamental principle for spatial hierarchy of habitat delivery, where there is a preference for onsite or local enhancements. Further information on this Biodiversity Gain Hierarchy is set out in the draft PPG Paragraph: 007 Reference ID: 74-007-2023.
The Biodiversity Metric incentivises habitat delivery on or close to the development site through a ‘Spatial Risk Multiplier’, which reduces the biodiversity value of habitats delivered further away from the development.
Where a development cannot achieve BNG either wholly or partly onsite, then the developer can secure the unit shortfall by securing a bespoke site for net gain, or from appropriate sites on the local net gain habitat market from other landowners. These sites will need to meet the criteria of the biodiversity gain sites register (when available – see National biodiversity gain sites register below). If a shortfall in units required to achieve BNG remains, having explored the onsite and local offsite options, a developer can purchase statutory biodiversity credits from government as a last resort.
PAS has some examples of conditions and S106s currently used by local authorities to secure BNG on our Biodiversity Net Gain in Development Management page.
Furthermore, PAS hosts a BNG Practitioner Network for LPA officers, which acts as a group to discuss and share documents and templates on BNG. If you wish to join this network, please fill out this Microsoft Form.
Permitted development will not be required to deliver BNG under the Environment Act. However, the metric can still be used to quantify the losses and gains of habitat associated with the development activity and this is already being done by a number of developers for permitted development.
Householder applications will be exempt from mandatory BNG. The BNG requirement will not be implemented until April 2024 for small sites and there is a Small Sites Metric available on the Biodiversity Metric webpage. The Small Sites Metric draft user guide sets out the circumstances under which it is appropriate to use this version of the Metric. Some information on applying BNG to small sites is provided in the Defra BNG guidance for LPAs.
You may also want to watch the recording of our ‘BNG: the essentials’ event held in November 2022, where David Warburton from London Borough of Sutton outlined how they are currently delivering BNG on small urban sites:
Biodiversity Net Gain and Nature Recovery Autumn 2022 events | Local Government Association
An Overall Biodiversity Gain Plan that sets out how biodiversity gain will be achieved across the whole site on a phase-by-phase basis must be submitted to and approved by the planning authority before any development can be begun for outline planning permissions and phased development. Further information on applying BNG to phased development is provided in the draft BNG PPG.
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).
Small-scale self-build and custom build development of no more than 9 dwellings and on a site which has an area no larger than 0.5 hectares is exempt from BNG. Larger scale outline applications should be dealt with in the same way as phased development. See the BNG PPG for more information.
Within Schedule 14 of the Environment Act, which sets out the biodiversity gain condition for development, measures are included that allow planning authorities to recognise any habitat degradation since 30th January 2020 and to take the earlier habitat state as the baseline for the purposes of biodiversity net gain. In order to ascertain the habitats present and their condition on 30th January 2020, aerial imagery or data sets from that time could be used. 30th January 2020 is the relevant date as it was the day the Bill entered Parliament.
For example, if a grassland site were strimmed or ploughed in July, the planning authority would be able to seek compensation for the habitat as it was in June, rather than the degraded habitat present in July. This system will take effect when the biodiversity gain requirement in the Environment Act is commenced.
Natural England and Defra intend to produce guidance on how this will work and which data sources may be of assistance in demonstrating the former value of any degraded or destroyed habitats. The 2022 consultation document sets out that further guidance within the Biodiversity Gain Plan will make provision for an earlier habitat value to be applied as the baseline where the value of habitats has been recently degraded.
This is provided for in the Environment Act, Schedule 14: Schedule 7A to the TCPA paragraph 5:
Pre-development biodiversity value
5(1) In relation to any development for which planning permission is granted, the pre-development biodiversity value of the onsite habitat is the biodiversity value of the onsite habitat on the relevant date.
(2)The relevant date is—
(a) in a case in which planning permission is granted on application, the date of the application, and
(b) in any other case, the date on which the planning permission is granted.
(3) But the person submitting the biodiversity gain plan for approval and the planning authority may agree that the relevant date is to be a date earlier than that specified in sub-paragraph (2)(a) or (b) (but not a date which is before the day on which this Schedule comes into force in relation to the development)
Circumstances under (2)(b) include things like Local Development Orders, Neighbourhood Development Order, Simplified Planning Zones, Enterprise Zones etc. BNG won’t be commenced for these routes in Spring 2024. Everything else is (2)(a), so baseline date is the date of application (not planning permission).
Green Infrastructure (GI) can form part of BNG and pretty much all the most common GI features are captured within the metric and can contribute towards a BNG outcome. It is for the consenting body (LPA) to determine whether or not the proposal is appropriate (ecologically) or not. Horsham District Council have produced a Biodiversity and Green Infrastructure Planning Advice Note setting out how they consider BNG and GI in planning decisions.
Yes. Private gardens can make positive contributions to biodiversity, but appropriate planting and ongoing management can not be secured in the long-term. The Biodiversity Metric recognises this in its scoring of the value of gardens.
See the Biodiversity Metric section for more information on this aspect.
Land used for off-site BNG delivery should be secured for the length of the net gain agreement, either via Section 106 agreements, or a conservation covenant. You will not need to have both in place to secure a site – just one of those two options. A conservation covenant is a private voluntary legal agreement, made in writing, between a Responsible Body and a landowner which establishes that land will be used for a conservation purpose.
See Conservation Covenants below for more information.
Further information on using S106 for BNG is provided in Paragraph: 026 Reference ID: 74-026-2023 of the PPG BNG and on enforcement in Paragraph: 006 Reference ID: 74-006-2023. For gains that are secured with conservation covenants, Government expects costs for monitoring and enforcement activities to be reflected in the price of biodiversity units. The responsible body for the conservation covenant will have responsibility for the enforcement.
Yes. This is where having a Local Plan policy that links BNG to delivery of local strategic priorities is really helpful.
See our Biodiversity Net Gain in Local Plans and Strategic Planning webpage for further information. See below for further
questions on the national credit scheme.
Incentives in the metric encourage gains to be located closer to the original impact location and the developer should demonstrate in the gain plan how they have applied the mitigation hierarchy, i.e. avoid losses, if not possible mitigate and as a last resort compensate.
In these circumstances, it may be preferable to use a conservation covenant but it would depend on the specific nature of individual cases.