Biodiversity Net Gain

What is biodiversity net gain?

The natural environment is deteriorating and one way the government is proposing to address this decline is through the introduction of mandatory biodiversity net gain through the planning system.

Biodiversity net gain (BNG) is an approach to development that aims to leave the natural environment in a measurably better state than it was beforehand. It is calculated using the statutory biodiversity metric.

BNG can be delivered on site, off site (through registered offsite biodiversity gains) or through the purchase of statutory bio diversity credits. (The mechanics of the latter two delivery mechanisms are still under development). However, in accordance with the biodiversity gain hierarchy (see below) there is a clear preference for onsite delivery.  Any habitat enhancement delivered must be maintained for at least 30 years after the development is completed.

The government guidance encourages applicant’s to consider BNG early in the development process, and factor it into site selection and design, and to discuss the BNG requirements for their proposal with the local planning authority through its pre-application advice service (see below).

The biodiversity gain hierarchy

Developers are encouraged to follow the Biodiversity Gain Hierarchy from the earliest stage possible when selecting a site and considering development proposals. Local planning authorities must take into account the Biodiversity Gain Hierarchy when considering whether the biodiversity objective has been met and when determining whether to approve the Biodiversity Gain Plan (see below).

The biodiversity gain hierarchy means taking the following actions in the following order of priority:

  • avoiding adverse effects of the development on any onsite habitat with a habitat distinctiveness score, applied in the statutory biodiversity metric, equal to or higher than six;
  • so far as those adverse effects cannot be avoided, mitigating those effects;
  • so far as those adverse effects cannot be mitigated, habitat enhancement of onsite habitat;
  • so far as there cannot be that enhancement, creation of onsite habitat;
  • so far as there cannot be that creation, the availability of registered offsite biodiversity gain;
  • so far as that offsite habitat enhancement cannot be secured, purchasing biodiversity credits.

What is changing?

From 12th February 2024 planning permissions for ‘in scope’ developments relating to applications made after that date will be subject to a general pre-commencement biodiversity gain condition. The condition will require in scope development to deliver at least a10% increase in relation to the pre-development biodiversity value of the development granted planning permission. The general biodiversity condition will not appear on the decision notice as it is a national requirement, other than it will be referenced in an informative note.  It will be a pre-commencement condition which will need to be discharged prior to the commencement of development through the submission and approval of a Biodiversity Gain Plan. Thereafter the Biodiversity Gain Plan will need to be implemented maintained as approved.    

In England, the relevant primary legislation for the statutory framework for biodiversity net gain is principally set out under Section 90A and Schedule 7A (Biodiversity Gain in England) of the Town and Country Planning Act 1990. This legislation was inserted into the Act by Schedule 14 of the Environment Act 2021 and includes amendments made by the Levelling Up and Regeneration Act 2023 and the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations [2024].

The relevant biodiversity net gain regulations most directly relevant to planning are:

  • The Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations [2024] 
  •  The Biodiversity Gain Requirements (Exemptions) Regulations [2024] 
  •  The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations  [2024] 
  •  The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations [2024] 

In addition, there are regulations for the Biodiversity Gain Site register established under section 100 of the Environment Act 2021 for registered offsite biodiversity gains.

What development is ‘in scope’?

While every grant of planning permission in England is deemed to have been granted subject to the general biodiversity gain condition, commencement and transitional arrangements, as well as exemptions, mean that certain permissions are not subject to biodiversity net gain. 

The new legislation and its associated regulations requiring mandatory 10% biodiversity net gain, will apply to planning permissions (outline and full) granted in respect to applications made after the regulations come into force on 12th February 2024 (subject to parliamentary processes). There is a temporary exemption for non-major development (defined as development not defined as major development) until 2nd April 2024 (and subsequent S73 applications where the original permission to which the S73 relates was subject to this temporary exemption).

Biodiversity Net Gain does not apply to retrospective planning permissions made under section 73A, section 73 permissions where the original permission which the section 73 relates to was either granted before12th February 2024 or the application for the original permission was made before 12th February 2024. 

Biodiversity net gain has not yet been commenced for local development orders, neighbourhood development orders, successful enforcement appeals, or deemed planning permissions. It will not apply to permissions in principle (though it will apply to the subsequent technical details consent) or applications for approval of reserved matters (as they are not a grant of planning permission).

The general biodiversity gain condition does not apply to

  • Householder development (as defined within article 2(1) of the T&CP(DMP) (England) Order 2015), 
  • development granted planning permission by a development order under section 59 (this includes permitted development rights),
  • De minimus development (Development that doesn’t impact a priority habitat and impacts less than 25 sqm of habitat or 5m of linear habitat such as hedgerows),
  • Self Build & Custom build development (where less than 9 dwellings and site area no larger than 0.5 hectares and consists exclusively of self build or custom housebuilding (as defined in section 1A of the Self-build and Custom Housebuilding Act 2015)
  • urgent crown development,
  • development of a biodiversity gain site, and
  • development related to the high speed rail transport network.

How is the biodiversity gain objective of 10% gain calculated? 

The biodiversity gain objective of at least a 10% gain is measured against the pre-development biodiversity value of the onsite habitat for the development.  The objective is met if this value is exceeded by at least 10% through a combination of:

  • onsite biodiversity gains measured as part of the post-development biodiversity value of the onsite habitat for the development
  • registered offsite biodiversity gains which have been allocated to the development; and
  • the purchase of biodiversity credits for the development

The Biodiversity Gain Hierarchy (which local planning authorities must take account of when determining the Biodiversity Gain Plan) emphasises that onsite biodiversity gains should be considered first followed by registered offsite biodiversity gains and (as a last resort) biodiversity credits.  

The statutory biodiversity metric is used to calculate the pre-development and post-development biodiversity value of the development’s onsite habitat, as well as the value for offsite biodiversity gains and biodiversity credits. It uses habitat information to generate ‘biodiversity units’, a proxy measure for biodiversity value. The statutory biodiversity metric data value inputs include habitat type, area, distinctiveness, condition, and its location in respect to areas covered by natural environment policies. Biodiversity units are divided into habitat units, hedgerow units and river units, all of which must be increased by at least 10% biodiversity net gain.

The statutory biodiversity metric calculation tool must be submitted as part of the Biodiversity Gain Plan to demonstrate the statutory biodiversity metric formula has been accurately applied.

The statutory biodiversity metric and information on how it is used can be found in guidance published by the Department of Environment, Food and Rural Affairs (Defra).

Submitting an application (Validation)

The BNG regulations impose additional national and local validation requirements these are reflected in  updates to our validation requirements and can be viewed here: https://www.hartlepool.gov.uk/info/20222/planning/381/planning_application_validation


The Biodiversity Gain Plan – Post Permission Requirements for In Scope Development

The regulations apply a pre-commencement condition to all in scope development this will require a Biodiversity Gain Plan to be submitted and approved by the Local Planning Authority prior to the commencement of development.  It is treated as a discharge of condition application and attracts the same fee.  A discharge of conditions application form should be used. It is anticipated that robust proposals will have been discussed and agreed at the application stage to assist in the timely discharge of this condition.    

The following content of a Biodiversity Gain Plan is required for standard development which is not to proceed in phases. Where planning permission is granted that has the effect of permitting development in phases, there are different requirements for the Biodiversity Gain Plan (please see Planning Practice Guidance link below).

Under paragraph 14(2) of Schedule 7A a Biodiversity Gain Plan must include the following matters:

  • information about the steps taken or to be taken to minimise the adverse effect of the development on the biodiversity of the on-site habitat and any other habitat
  • the pre-development biodiversity value of the on-site habitat
  • the post-development biodiversity value of the on-site habitat
  • any registered off-site biodiversity gain allocated to the development and the biodiversity
  • value of that gain in relation to the development; and
  • any biodiversity credits purchased for the development

In addition, under Articles 30C(2) and 30C(4) of The Town and Country Planning (Development Management Procedure) (England) Order 2015 the following specified matters are required, where development is not to proceed in phases:

  • name and address of the person completing the Plan, and (if different) the person submitting the Plan
  • the reference number of the planning permission to which the plan relates;
  • a description of the development to which the plan relates
  • the completed biodiversity metric calculation tool, stating the version of the biodiversity metric used and showing the calculation of the pre-development and post-development biodiversity value
  • a description of arrangements for maintenance and monitoring of habitat enhancement to which paragraph 9(3) of Schedule 7A to the 1990 Act applies (habitat enhancement which must be maintained for at least 30 years after the development is completed)
  • (in cases where there is no irreplaceable habitat on the development site) how the biodiversity gain hierarchy will be followed and where to the extent any actions in that hierarchy are not followed, the reason for that
  • the relevant date for the purposes of calculating the pre-development biodiversity value of onsite habitats
  • pre-development and post-development plans —
    • showing the location of onsite habitat;
    • drawn to an identified scale and showing the direction of North; and
  • in relation to any part of the development for which planning permission is granted where the onsite habitat of that part is irreplaceable habitat arrangements for compensation for any impact the development has on the biodiversity of the irreplaceable habitat

There is a standard Biodiversity Gain Plan template available to complete which brings together many of these matters into one document:

Biodiversity gain plan - GOV.UK (www.gov.uk)

A Biodiversity Gain Plan must be submitted no earlier than the day after the relevant planning permission has been granted.  Once approved it cannot be amended however  a new Biodiversity Gain Plan can be submitted to the planning authority for approval. When submitting this it should be made clear that the intention is that the new plan will supersede any previously approved plan.

How can I obtain further advice?

See the Detailed Planning Practice Guidance on BNG:

https://www.gov.uk/guidance/draft-biodiversity-net-gain-planning-practice-guidance

The government guidance emphasis the importance of pre-application discussions.  The council operates a fee-based One Stop Shop service which can be utilised for pre-application advice in relation to proposed developments. If you wish to obtain specific advice on Biodiversity Net Gain you should state this.  The advice will be most useful if you have considered your proposals in advance including completing the relevant pre and post development biodiversity metric tools where possible. There may be an additional charge for this service. Details of the One Stop Shop Service can be found in the link below.

One Stop Shop | Planning Advisory Service | Hartlepool Borough Council

Disclaimer

This page provides a brief overview of the topic at the time of publication.  It does not provide comprehensive advice and guidance on all aspects of BNG.  In all cases reference should be made to the most up to date guidance. 

 

Last Updated 07/02/2024