On February 12, 2024, Biodiversity Net Gain (BNG) became mandatory under Schedule 7A of the Town and Country Planning Act 1990, added by the Environment Act 2021.

It is important to remember that BNG is additional to, and does not replace, existing wildlife legislation, policy, and guidance. Therefore, the usual processes must also still be followed such as Protected Species Surveys, Ecological Impact Assessment (EcIA), Habitats Regulation Assessment (HRA) etc as development proposals will still be subject to the same biodiversity assessment criteria for designated sites and protected species as before.

– Claire Gilby, Principal Ecologist at Pell Frischmann

Full guidance can be found here but below are the key ‘need to know’ requirements for Project Managers.

So, what are the basics you need to know for your projects?

Mandatory or Statutory BNG is only triggered for planning permissions granted in respect to an application made after 12th February 2024, so permissions granted for applications made before this date are not subject to Statutory BNG (although BNG may already be required by local policy).

Subject to some minor exemptions and (currently) small sites please ensure you are promoting the requirement of BNG to your clients as it now legally requires the following:

  • The biodiversity gain plan must demonstrate that the biodiversity gain objective is met, with the objective being that biodiversity attributable to the development exceeds the pre-development biodiversity value by at least 10%. 
  • This objective and biodiversity net gain plan will be calculated and judged against the Statutory Biodiversity Metric which will be completed and advised about further by the Ecology Team.

Full details are set out in Schedule 7A Town and Country Planning Act 1990 and The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024 (SI 2024/50).

What are the exemptions to needing BNG mentioned above, how do I know if my project requires it?

The Exemptions to BNG that will apply from 12 February 2024 set out which planning applications will not have to provide BNG.

Until the 2nd April 2024, ‘small sites’ are exempt from statutory BNG (i.e a site does not fall into the category of a major development, as defined in article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015.). 

As quick guide a small site includes:

  • Residential development where the number of dwellings is between 1 and 9, or if this is unknown, the site area is less than 0.5 hectares
  • Commercial development where floor space created is less than 1,000 square metres or total site area is less than 1 hectare
  • Development that is not the winning and working of minerals or the use of land for mineral-working deposits
  • Development that is not waste development

In addition, the exemption regulations set out that the following will not need to provide BNG:

  • Developments below the threshold (i.e. your application impacts less than 25 square metres of non-zero distinctiveness habitat *and* less than 5m of hedgerow *and* less than 5m of watercourse *and* does not impact any priority habitat)
  • Householder applications (as defined within article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015.) which generally includes small projects such as home extensions, conservatories or loft conversions.  
  • Self-build and custom build applications if all of the following conditions apply:
  • Biodiversity gain sites (i.e. a developments undertaken for the purpose of fulfilling the BNG planning condition for another development are exempt) 
  • High speed rail transport network (An exemption applies to any development forming part of, or ancillary to, the high-speed railway transport network, comprising connections between all or any of the places or parts of the transport network specified in section 1(2) of the High Speed Rail (Preparation) Act 2013)
  • It is also worth noting that BNG does not apply to:
    • Retrospective planning permissions made under Section 73A; and
    • Section 73 permissions where the original permission which Section 73 relates to was either granted before 12th February 2024 or the application for the original permission was made before 12th February 2024.
Okay so what are the BNG Planning Validation requirements?

The key statutory requirement will be that Applicants must confirm whether or not their project will require BNG, and if not then outline the reasons why (i.e. one of the exemptions listed above). This is a new national mandatory validation requirement and will be required in the form of a Biodiversity Net Gain Statement.

The Biodiversity Net Gain Statement will define whether the project is exempt or not and we will provide updated advice on what this must include once we have fully digested the Biodiversity Net Gain Regulations published on 12th February 2024. The key to remember is that if this information has not been provided, the local planning authority must refuse to validate the application.

So, What Next?

Our Ecology Team are here to help de-risk your projects from an early stage and will assist by advising on the Statutory Metric which is to be used and will aid in liaising with the LPA about the level of BNG information they require.  

Early engagement will help to avoid problems at a later date. Even if you think that your scheme does not require BNG, the Ecology Team will be able to advise on this and guide the project forward. It is much easier for us to do this early in the project than 2 weeks before the planning application is due in!