New environmental delivery guidance: what developers need to know about BNG for NSIPs and the Nature Restoration Fund

Although both regimes concern the environmental effects of development, they perform different functions. Biodiversity net gain (“BNG”) requires development to achieve a measurable improvement in biodiversity. The Nature Restoration Fund (“NRF”), operating through Environmental Delivery Plans (“EDPs”) and the Nature Restoration Levy (“NRL”), provides an alternative means of discharging specified obligations relating to protected sites and species. Compliance with one regime does not remove the need to comply with the other.

In this article, we focus on the novelties introduced by these new pieces of guidance.

Part 1: BNG for NSIPS

A new operational framework for NSIPs

The guidance on “Biodiversity net gain: nationally significant infrastructure projects” (available here) provides further clarity on how mandatory BNG will apply to nationally significant infrastructure projects (“NSIP”) from 2 November 2026.

Developers will need to demonstrate at least a 10% biodiversity gain by reference to the biodiversity gain statements applicable to their sector, which were published back in June 2026 (here). The gain statements have effect as if they formed part of the relevant National Policy Statement, pending their incorporation when the National Policy Statement is next reviewed.

This new guidance provides a practical framework for defining the BNG baseline, addressing design uncertainty and securing delivery through the Development Consent Order (“DCO”) process. 

The BNG boundary is NOT the same as the development’s order limits

The guidance clarifies that the BNG baseline is not automatically calculated across the whole area within the DCO order limits (i.e. the geographic limits of the powers the applicant is seeking through the DCO). Instead, the BNG boundary must only include habitats within those limits which will be negatively affected by the development and habitats which will contribute towards the project’s BNG.

Unaffected habitats can be excluded where there is sufficient confidence that it will not be impacted or degraded. However, the developer’s ecologist should confirm that excluded habitat will remain unaffected, including by enabling works, construction compounds, access routes, maintenance and operational activity.

Where the location or extent of development is not fixed, the baseline must reflect a realistic worst-case impact, based on the maximum realistic design and construction parameters. This is distinguished from a hypothetical or excessively precautionary scenario. If there is no most likely route or design option, the developer should assume impacts to the highest-value habitats that could realistically be affected, unless avoidance measures or construction controls provide a sufficient basis for a different approach. 

On-site and off-site delivery can be considered together

Unlike the BNG regime in the TCPA 1990 which requires to consider on-site delivery before any off-site delivery, for NSIPs on-site gains and off-site gains can be considered at the same time. However, statutory biodiversity credits remain a last resort after on-site and off-site opportunities have been exhausted.

This flexibility is convenient for linear and large-scale infrastructure projects in which it can be difficult to demonstrate that every on-site possibility has been exhausted. Nevertheless, the metric continues to incentivise delivery close to the development through the spatial risk multiplier.

The guidance also recognises that NSIPs may require substantial quantities of units or habitat types that are not readily available. Developers are therefore encouraged to engage with habitat banks, landowners and the off-site market at an early stage. The outline biodiversity gain plan should contain evidence of unit availability or arrangements with providers where off-site delivery is proposed. An insufficiently evidenced strategy is likely to attract greater scrutiny during examination and create delay.

Temporary impacts and design evolution

Low or very low distinctiveness habitats which are affected only temporarily may be treated as “retained”, if they are reinstated to their original type and condition within 5 years of the impact. The same applies to medium distinctiveness habitat, if they are reinstated within 2 years. If reinstatement within the relevant period subsequently proves impossible, the habitat can no longer be treated as retained and an updated metric and gain plan must reflect the resulting loss. 

The consenting process is also designed to accommodate evolving NSIP designs. The DCO application must include an outline biodiversity gain plan, a single metric calculation and appropriate draft DCO requirements. Following consent, an updated plan, or phase plans for phased projects, must be approved before the relevant development or phase commences.

The updated plan must account for changes to the development, habitat impacts and on-site delivery. It must also include updated calculations, supporting plans, evidence of secured units and an updated Habitat Management and Monitoring Plan where relevant. Material departures from the approved outline plan will require explanation and justification.

The guidance permits some flexibility over when units are secured. The “Plan to secure your gains” subheading of the guidance provides that developers should secure as many units as reasonably possible before commencement, but a limited shortfall may be capable of being secured later where substantial design uncertainty remains. All outstanding BNG must be finalised and secured before the project, or the relevant phase, begins operating. 

Part 2: New pieces of guidance on NRF, EDPs and NRL

Guidance

The pieces of guidance recently released are the following:

• Environmental Delivery Plans (available here)
• Understanding the Nature Restoration Fund (available here)
• Using the nature restoration levy (available here)
• Nature restoration levy enforcement actions and appeals process (available here)

The new guidance adds practical detail about what an EDP will contain, how the NRF will interact with other environmental obligations, the process for obtaining and relying on a levy commitment, and the consequences of non-compliance.

Guidance – Environmental Delivery Plans

The guidance explains the information that each EDP will provide. 

A notable practical point is that even if a development falls within the scope of an EDP, this will not be sufficient. Developers will also need to establish whether an EDP has enough remaining capacity for their development. Natural England will publish updated capacity information at regular intervals.

The guidance also explains that the expected cost of the conservation measures in an EDP will inform its charging schedule. Each draft EDP will be subject to public consultation before the final version is made and published.

Guidance – Understanding the Nature Restoration Fund

This guidance clarifies how the NRF will interact with existing environmental processes. 

Most EDPs are expected to be voluntary. However, an EDP may be made mandatory where a bespoke EDP has been prepared for a particular large-scale project.

Only obligations relating to impacts expressly covered by an EDP will be disapplied. Impacts outside its scope must continue to be addressed through the usual processes, including, where applicable, a habitats regulations assessment.

Crucially, the guidance clarifies that BNG and the NRF are “distinct and complementary policies”. Developers may therefore need to comply with both regimes as paying the NRL will not satisfy a BNG requirement, while delivering BNG will not discharge obligations relating to protected sites or species covered by an EDP.

The guidance also confirms that no EDPs have yet come into force. Further detailed guidance for local planning authorities will be issued ahead of the first EDP coming into force.

Guidance – Using the Nature Restoration Levy

The guidance provides the detailed developer journey that was not apparent from the primary legislation alone. The principal stages are summarised as follows:

“If the development is covered by an EDP and a developer wants to use the nature restoration levy, they’ll need to:

• get a quote for the nature restoration levy
• request to use the nature restoration levy
• submit a levy commitment to support a planning application
• assume liability to pay the nature restoration levy
• pay the nature restoration levy”

Obtaining a quote does not commit the developer to using the NRL or reserve EDP capacity, and multiple quotes may be obtained. If Natural England accepts a request to use the levy, it will issue a commitment certificate and allocate EDP capacity to the development.

The certificate should accompany the planning application. If it is not submitted as part of an application within six months, the commitment expires and the capacity is released. Liability must generally be assumed before development begins, and the levy, or the first instalment, must be paid before commencement. The liability will be registered as a local land charge until the levy has been paid in full.

Guidance – Nature Restoration Levy Enforcement actions and appeals

This guidance explains how Natural England will use its powers in practice. It states that surcharges will be imposed as standard, although Natural England may decide not to impose one in exceptional circumstances.

Importantly, developers must notify Natural England where the development details used to calculate the levy materially change. Failure to do so may result in a surcharge of £300 or 30% of the levy amount, whichever is lower.

Separate consequences apply for failure to assume liability and late payment. These include escalating surcharges, interest, warning notices and stop notices. Natural England may also recover unpaid sums as a debt and register the liability as a local land charge.

The guidance additionally explains the new review and appeal process. A liable person may request a review of the calculation or apportionment of liability within 28 days of the relevant notice. Following a review, certain decisions may be appealed to the Secretary of State. Payments relating to the disputed decision are suspended while the review or appeal remains outstanding.

The practical message is that the NRF is moving towards implementation, but its application will depend on the scope, capacity and charging schedule of each EDP. Developers will need to consider the NRF alongside, and not instead of, BNG and any environmental obligations falling outside the relevant EDP.