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Happy BNG Commencement Date!

The Biodiversity Net Gain (BNG) regulatory framework goes live today. In this first tranche this will affect most major developments with smaller sites which fall outside of the exemptions being caught on 2 April 2024.

Whilst we have had biodiversity net gain principles in the NPPF since 2012, this is the first time this has become a mandatory legal requirement which will cover all planning applications over the next few years, save for those which are exempt.  This new regime is to provide a national framework for a consistent approach in relation to how to develop BNG policies and how to approach planning applications and developments.

To recap, this framework requires that, following the implementation date, all new developments will be required to achieve at least 10% biodiversity net gain value. This can be achieved either onsite within the red line boundary or offsite either within a wider landholding but not subject to the planning application or third-party land. If neither of these options are available, a developer will be able to purchase statutory credits.

The Regulations set out the mechanism for site registration, the exemptions from the need to comply (these are mainly small sites, householder applications and certain self-build sites), the alternative arrangements for irreplaceable habitats together with the amending provisions and the fees and penalties.

The net gain must be secured for a minimum of 30 years, and will be provided for by either a Section 106 Agreement (enforced by the local planning authority) or a conservation covenant (enforced by the appropriate authority).

Planning applications will need to be accompanied by the following information:

  • A biodiversity net gain statement confirming the development would be subject to the net gain requirement.
  • The biodiversity value of the site at the relevant date, together with the completed biodiversity metric calculation.
  • A description of and a plan showing any irreplaceable habitat.

This will follow the discharge of condition regime in terms of the implementation of the planning permission.

There will be new plan making and development management policies possibly leaning into the changes to the NPPF following on from the Levelling Up and Regeneration Act 2023.

With this new regime we are expecting to see an increase in litigation regarding the principles of this.  There are already three cases going through the Courts and these cases will be keenly watched to see what changes they make to the legislative framework.

Biodiversity net gain schemes are frequently found alongside schemes for nutrient and water neutrality, as well as other natural capital schemes. Stacking must be treated with care, but forthcoming legislation will clarify when stacking can be used for all schemes delivering environmental improvements.

How we can help

If you’d like to speak to the Irwin Mitchell Environment Law team about this, please get in touch.