UK: Gaining Guidance On BNG

1 New guidance

As we discussed in our Autumn briefing here, the Environment Act 2021 amended planning legislation (from a date to be set by law, but now known to be January 2024) to require certain planning permissions in England to be subject to a new pre-commencement condition requiring a biodiversity gain plan for the development. The condition will require the developer to submit and have approved the plan which demonstrates how a 10% gain in biodiversity value will be achieved. Note that 10% is the statutory minimum – many local planning authorities ("LPAs") will set higher targets.

Biodiversity net gain ("BNG") represents a significant new requirement and there have been concerns amongst developers and LPAs alike about how the current planning system will cope. With that in mind, some of the common questions have been addressed with the publication by DEFRA, on 29 November, of some new guidance alongside draft regulations.

The guidance supplements two earlier pieces that were released earlier in the year (about what counts towards BNG and also combining BNG and nutrient mitigation payments) on the BNG collection page here.

2 A reminder - when does BNG come into effect?

BNG is due to come into force in three steps:

• For most applications: January 2024;
  
  
• For small sites: April 2024; and
  
  
• For Nationally Significant Infrastructure Projects: 2025.

3 What information does the new guidance contain?

The new guidance contains separate advice for developers, land managers considering selling habitat to a developer, and LPAs. It also includes a helpful template Biodiversity Gain Plan (published alongside Natural England's Habitat Management and Monitoring Plan), as well as setting out how legal agreements could be used to secure the BNG requirement.

Some of the guidance is still in draft form and will need to be updated when BNG provision becomes mandatory, but will be helpful information in the interim. DEFRA is keen to engage with the real estate community and welcomes feedback on this new guidance. There's clearly a lot for everyone involved in planning and development to grapple with over the next few months. Naturally, it will take some time for the measures to bed in, processes to settle and for best practice to emerge.

4 Conclusions

With that in mind, we will be keeping you up to date with our reflections on the new regime as it takes effect, based on what we have seen in practice. This will include setting out some key considerations that need to be worked through as early as possible in the planning application process, when assessing BNG requirements for new developments.