Background
Following ambitions for future development to contribute biodiversity net gain (BNG) in Part 6 of the Environment Act 2021, new regulations amplifying the provisions of the 2021 Act were published on 29 November 2023. The statutory requirements are scheduled to take effect in January 2024, though the dates in force on the regulations have been left blank, but they will need to come in force together on an appointed day. The new regulations are crucial to developers and others in understanding the detail of how a minimum 10% BNG can be delivered to ensure planning consent.
Applications for planning permission will need to be followed, where approved, by a biodiversity gain plan according to a published template. The local planning authority then have eight weeks to approve or refuse the plan. The plan may make provision for BNG on site or offsite or, as a last resort, through the purchase of biodiversity credits. Any plan will need to be secured either through a section 106 agreement or a conservation covenant and the net gain enhancement should then be delivered and maintained over a minimum of 30 years, again according to a template (from Natural England).
The new regulations
Six statutory instruments have been published which both complete and augment the BNG legal framework. Below we group these in twos according to their subject matter.
- Registers: The Biodiversity Gain Site Register Regulations 2024 regulations make provision for Natural England to set up and maintain a “biodiversity gain site register” open to the public. The register will contain a record of the agreed off-site BNG commitments. The Regulations contain the eligibility criteria for sites to be registered (see the definition of “Biodiversity gain site” is defined in section 100(2) of the Environment Act 2021). The criteria are essentially that the sites are committed to habitat improvement as agreed in an appropriate legal instrument for a period of at least 30 years. The register will show which sites are allocated to specific developments where planning permission is granted for that development on the back of a biodiversity gain plan. The Regulations provide for the registration of land listed in the biodiversity gain site register by reference to the conservation covenants or section 106 agreements which seek to secure the biodiversity gain objective. A parcel of land may be registered more than once, but, where this is so, the registration must refer to a different conservation covenant or section 106 agreement.
The register will record any allocation of habitat enhancement on the land to a specific development for which planning permission has been granted. The Regulations also provide for the amendment of the register on application or on the initiative of Natural England, with provision for appeal (to the First Tier Tribunal) in relation to registration decisions.
A second statutory instrument, the Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2023, as the name suggests, permits and sets out fees applicable to registering land on the biodiversity gain site register, which is to be operated by Natural England. The Regulation also contains provision for fines where false of misleading information is submitted.
- Exemptions: There are certain categories of development which once subject to planning permission are exempt from the BNG requirement. The list which is found in the Biodiversity Gain Requirements (Exemption) Regulations 2024 is said to be deliberately slim, but exemptions are available for:
• Developments with no impact on priority habitat AND where the impacts fall below a ‘de minimis’ threshold of less than 25 square metres of habitat that has biodiversity value greater than zero and less than 5 metres in length of linear habitat;
• Householder applications;
• Developments which form part of the high-speed railway network;
• Developments undertaken off-site purely to deliver BNG;
• Developments which consist of no more than 9 dwellings on a site which has an area no larger than 0.5 hectares AND consists exclusively of dwellings which are self-build or custom housebuilding.
In addition, there will be a light touch scheme for small developments which will take effect on 1 April so there is a temporary exemption for small developments where an application for planning permission is made or has been granted before April 2024.
- Irreplaceable habitats:There are in a rather different sense other suggested forms of development where BNG is not engaged. Certain habitats can be considered irreplaceable such that these do not attract BNG. This is because the irreplaceable nature of these habitats and their intrinsic value makes them inappropriate for development, even if a 10% net gain is promised (though actually might prove impossible to deliver). Following a long history of the EU Habitats Directive and its transposition into English law, such sites are already well protected with a strong presumption against development which the BNG regime aims to enhance rather than dilute.
The details of these sites are contained in the Biodiversity Gain Requirements (Irreplaceable Habitats) Regulations 2024 and can be summarised as follows:
• Blanket bog;
• Lowland fens;
• Limestone pavements;
• Coastal sand dunes.
These habitats are drawn from the list of priority habitats issued by the Secretary of State in exercise of powers under section 41 of the Natural Environment and Rural Communities Act 2006. To these are then added:
• Ancient woodland;
• Ancient/veteran trees;
• Spartina saltmarsh swards;
• Mediterranean saltmarsh scrub.
The descriptions of these habitats are contained in Table 2 of the Schedule to the Regulations.
- Amendments: The regulations contain some amendments to earlier statutory provisions including provisions of the Environment Act 2021. One statutory instrument, to be labelled the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2023, contains the consequential amendments to existing planning statutes all of which are technically necessary but some of which clarify definitional issues such as which English planning authorities are charged with BNG duties.
The final regulation, the Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024 address the development management process for planning applications in relation to the operation of BNG. There is greater detail on content of the BNG plan and on the process for approval of that plan, which should be determined within eight weeks from submission, subject to an extension of time agreed by the parties. In particular, the regulations allow the BNG framework to be modified where the development is phased in order to ensure that appropriate biodiversity gain is achieved. Similarly, there can be modifications to allow for variations to planning permissions, again to ensure the general biodiversity gain condition is met. These Regulations further elaborate on the considerations to be applied by planning authorities when making a BNG determination and contain details of the appeals process applying to such determinations.
Conclusion
With the publication of these regulations, the BNG regime is set to take effect in 2024, though the timescale leaves relatively little time for developers and their advisers to come to grips with the detail of this package of regulations. The other major task now becomes one of assessing both the on-site and off-site biodiversity potential of land and, in particular, securing appropriate off-site biodiversity net gain, which, in spite of the emergence of off-site habitat banks, could prove difficult to both source and assess.
Written by Professor Robert Lee at Birmingham Law University| Chair Landmark Academy
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