13
March
2024

How does the new Biodiversity Net Gain (BNG) impact developers?

BNG is increasing the overall biodiversity value of a development site. This involves the creation, protection and enhancement of natural habits to support local wildlife.

Tim Dillon | Senior Associate – Real Estate

On the 12th February 2024 the mandatory requirements relating to biodiversity net gain (“BNG”) came into force in England. A BNG of at least 10% is now required for new planning applications under the Town and Country Planning Act 1990 (“TCPA 1990”) that result in a loss or degradation of habitat, save for some exceptions.

What is the Biodiversity Net Gain (BNG)? 

BNG is increasing the overall biodiversity value of a development site. This involves the creation, protection and enhancement of natural habits to support local wildlife, acknowledging the positive impact wildlife has on climate change and ensuring that the biodiversity of a particular piece of land or habitat will be preserved and protected.

Section 90A of and Schedule 7A to the TCPA 1990 provides details of the mandatory condition to planning permissions granted in England, subject to some exceptions.

The condition requires a biodiversity gain plan to be submitted to and approved by the local planning authority (“LPA”) before development can lawfully commence. The biodiversity gain plan should contain, amongst other things, an assessment of the value of natural habitats before and after development.

How to measure biodiversity

Developers must first calculate the biodiversity value of a given habitat, the pre-development value being the base value. A developer should use the statutory (official) biodiversity metric calculation tool to calculate the biodiversity value.  This value is based on a number of factors, such as:

  • size;
  • condition;
  • strategic significance; and
  • type,

of the habitat. A developer should instruct a competent party, for example an ecologist, to use the metric tool (unless it is for a small development).

From here, developers will have an understanding of the statutory (official) measure of how many biodiversity units a habitat has prior to development and what steps are needed to restore any units lost and how they are to achieve the 10% BNG uplift.

Further information on this can be found in the Government’s Statutory biodiversity metric tools and guides.

Who will be impacted by the new biodiversity rules?

These changes will impact any developers who:

  • Develop major sites
  • Have plans to develop smaller sites from 2 April 2024 onwards
  • Will be involved in the development of nationally significant infrastructure projects from November 2025 onwards

As well as:

  • Land managers wanting to sell in the BNG market
  • LPAs

Details of any exemptions can be found on the Government website.

How can developers ensure Biodiversity Net Gain?

Developers can achieve the 10% BNG uplift by:-

  1. Creating, enhancing and maintaining habitats on-site
  2. Where it is not possible to achieve the required BNG uplift on-site, securing off-site BNG
  3. If the BNG uplift cannot be secured via option (1) or (2), there is also the option to purchase statutory biodiversity credits from the government. This is only an option where developers can demonstrate they are unable to achieve BNG through the above measures

There is a hierarchy to be aware of around the order in which developers should follow these steps from the government.

What are the initial steps (prior to the grant of planning permission) for developers in respect of the Biodiversity Net Gain requirements? 

Initially, a developer should:

  1. Check if the proposed development is exempt from BNG.
  2. If the development is not exempt from the BNG requirement, the developer should consider and assess how the 10% BNG uplift can be achieved with the assistance of appropriate consultants (this involves calculating the pre-development biodiversity value of a site and how many biodiversity units will be required).
  3. For:
    a) significant on-site BNG a developer must enter into a legal agreement as landowner; and
    b) off-site BNG a developer must secure the gains by a third party landowner entering into a legal agreement.

There are specific requirements as to what a legal agreement must contain.

The government has issued a number of useful guides to support developers as they navigate this time, including:

If you’re a developer and require additional support around how to interpret these new changes and what it means for your upcoming development plans, our expert Real Estate team are on hand to offer practical guidance and support.  

Please email Tim Dillon for more information via tim.dillon@primaslaw.co.uk 

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