DEFRA confirmed on the 28th May with their consultation on BNG that Labour is supporting the continuance of the BNG scheme and the introduction of NSIPs in May 2026. The consultation looks at various options which could be good news for developers if implemented.
Biodiversity Gain requirement: At what point does a planning application require mandatory BNG?
Whilst for the last year it has been a mandatory condition for the majority of developments to comply with BNG requirements when planning applications were made on or after 12th February 2024, there has been some uncertainty regarding applications made before that date. A recent judicial review, concerning a planning application made on 11th January 2024 by Westchurch Homes Limited has clarified this point.
In this case, the planning application was incomplete and after requesting further documents, the LPA only validated the application in April. The LPA initially granted permission without a mandatory biodiversity gain condition, due to considering the application as being made in January. When another developer challenged this status, the LPA stated that the application was “made” at the point it was initially received.
Judicial review was refused, with the judge reaffirming that an invalid application that was subsequently made valid was taken as being submitted from the first date of submission and that any application ‘no matter how flawed, is capable of being saved by the provision of correct documentation’. The development therefore did not require BNG, as the application was before the 12th February date.
There is currently an application to the Court of Appeal for permission to appeal this ruling, however this judgement should provide some certainty for those with an application in and around February 2024 who were unsure of their obligations.