Last week saw a flurry of activity on the path to mandatory Biodiversity Net Gain with the framework of agreements becoming clearer and implementation processes clarified. Secondary legislation has been released in the form of six statutory instruments applying powers fashioned under the Environment Act 2021 creating the means of implementing the Act’s objectives through amending existing planning legislation. These Statutory Instruments (or regulations) will need to all go live as of January 2024 from when planning applications for most major developments will require BNG. The six statutory instruments with their key points of interest are summarised below.
Note that whilst the first two of the below instruments are currently being considered for approval by parliament; currently all six are still in draft form and may yet be amended. For the sake of brevity, due to the length and complexity of this topic, information that has been public knowledge for some time has not been pointed out, rather this is a focus on the new aspects.
1. The Draft Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2023
This amends existing legislation of the Town and Country Planning Act 1990, specifically section 73 to require a BNG component.
2. The Draft Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024
This will specifically deal with the implementation of fees charged for applications to the register and financial penalties where false or misleading information is provided. This may allow for up to £5,000 in fines, whilst initial registration (and amendments) of a site costing £639 with a further £45 for allocation (or removal) of a site to each development. Removing an entry on the register will cost £89.
3. The Draft Biodiversity Gain Site Register Regulations 2024
This is the largest and most detailed instrument going into detail on the creation of Natural England’s public register of BNG sites and has been anticipated for a while. This regulation allows for its creation, maintenance and associated fees to register sites on it along with powers to issue fines/penalties for providing false or misleading information. To be registered land must have the securing mechanism in place (s.106/conservation covenant) for the 30-year term. The regulation provides criteria for land to be eligible for the register; a list of information required for an application; how Natural England are to establish and maintain the biodiversity gain site register and to ensure that information in it, is accessible to the public; and finally how to amend, withdraw and appeal decisions.
Further key points include:
3.1 Onsite net gain does not currently require signing up to the register.
3.2 A covenant/s.106 cannot be on the register twice s.5 (2).
3.3 Different covenant/s.106s may be registered relating to the same area of land s.5 (4) i.e. where a larger area of land is first registered then allocated to multiple developments over a period as is likely to be the case when ‘habitat banking’.
3.4 An application to register land in the biodiversity gain site register in relation to a conservation covenant/s.106 may only be made by a person who is required under the covenant/planning obligation to carry out works or to maintain the land during the agreement term or a person against whom these requirements are enforceable. s.7 (2). This does not include ‘responsible bodies’ who cannot register sites they are monitoring.
3.5 NE may, by giving notice to the applicant, request any information it needs in order to determine whether it is required to accept the application, if not provided within 3 months of the notice then an application may be rejected.
3.6 NE may amend the entry if they do not consider the information complete and accurate.
3.7 When ‘banking’ units, an application may be made by a “relevant person” (as in 3.3 above) or someone with the consent of all these persons, to the NE to record the allocation of the habitat enhancement to the development in question during a sale of units.
3.8 An application for registration, or assignment of units may only be withdrawn if it has yet to be accepted or rejected.
3.9 Information in an entry in the biodiversity gain site register may be amended if the information is incorrect due to a modification of the works in a covenant/s106 under s.17 (3) or the enhancement is no longer assigned to the development, s.17 (2) (c). But not for enhancements that have already been allocated to development sites. s.17 (7)
3.10 Sites may be withdrawn from the register if no allocation of units has occurred to a development.
3.11 Sites will be withdrawn once NE consider all obligations under an agreement to be fulfilled.
Requirements before applying to the register:
- There must be one or more persons required to carry out the works s.6 (2) and to maintain the land as such for at least 30 years. s.6 (3). This requirement for the person only begins once the site is used for a planning obligation. These persons are to be named in the register application. s.8 (i)
- There must be an agreement to monitor the site and ensure it’s to the required standard during the period which the conservation covenant or section106 stipulates.
- The results of the works (units) must be available for allocation for the fulfilment of planning obligations.
- The s.106/covenant must be registered in the local land charges register or the appropriate local land charges register(c).
4. The Draft Biodiversity Gain Requirements (Exemptions) Regulations 2024
As the name suggest, this lists types of development which are exempt from the requirement to demonstrate BNG including:
4.1 Confirming the exemption for small developments before 1st April 2024. Small developments being those that fall under article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015(a)
4.2 Development with no impact on priority habitat and where impacts fall below the specified ‘de minimis’ threshold of less than 25 square metres of habitat that has biodiversity value greater than zero; or less than 5 metres in length of linear habitat.
4.3 Householder applications as defined in article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015.
4.4 High-speed railway network as defined section 1(2) High Speed Rail (Preparation) Act 2013
4.5 Off-site gain developments, i.e., development which is undertaken solely or mainly for the purpose of fulfilling other BNG planning conditions.
4.6 Developments that are exclusively self-build and custom builds of no more than 9 dwellings on an area no larger than 0.5ha.
The Secretary of State will carry out a review of these Regulations once every 5 years.
5. The Draft Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024
Certain habitats are considered irreplaceable and so the 10% requirement will not apply to them, instead requiring bespoke compensation agreements. As these are highly protected already under the NPPF this is seen as simply a further level of protection. These habitats include:
- Ancient woodland, ancient trees and veteran trees
- Spartina saltmarsh sward
- Mediterranean saltmarsh scrub
List to be reviewed once every 5 years. A consultation next year will further review the definition of irreplaceable habitats.
6. The Draft Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024
This sets out how BNG fits into the planning application process, what a successful BNG Plan will involve and how an LPA will deal with it. It modifies sections of the Town and Country Planning Act 1990 including Part 2 of Schedule 7A (from the Environment Act 2021) in relation to development in phases and paragraph 14 and 15 dealing with biodiversity gain plans. The key additions are:
6.1 provisions for information about biodiversity net gain for applications for planning permission and decision notices.
6.2 provisions for the contents of biodiversity gain plans and the procedure for submission of plans to planning authorities.
6.3 provisions for the timescale within which planning authorities must determine whether to approve a plan.
6.4 what planning authorities must consider when making a determination.
6.5 the process for making an appeal relating to a determination.
6.6 modified arrangements for phased developments.
A timeframe of 8 weeks is suggested for a review of a plan.
7. Conclusion
There are three interesting points that require further consideration.
7.1 One being that ‘responsible bodies’ cannot register sites they are monitoring. This suggests that they cannot create their own “Habitat Banks” (unless they employ another body to undertake the monitoring). This may cause implications for LPAs looking to create their own BNG units and likewise landowning wildlife trusts.
7.2 The second concerns the ability to amend an agreement once a covenant/s.106 is in place.
S.17 (3) allows information of an entry on the biodiversity gain site register to be amended where modification of works occurs, subject to various restrictions, where it has been agreed between the parties. How this is implemented in practice remains to be seen and the true flexibility is unclear but it seems possible as long as units have not been already sold to comply with a planning obligation. This could address the risk of entering a covenant /s106 on the NE Register in order to be “oven ready” for market and not finding a buyer or needing to change the habitat type to be created to match a different market demand.
7.3 ‘s.6 (3): to be maintained for 30 years after the completion of enhancement works.’
This section implies a major unexpected twist, although it may well simply be a result of the regulation’s ‘draft’ status. It implies that the 30-year period for an agreement only begins once an enhancement/creation is at its final, completed stage. Considering that certain habitats can take up to 30 years or more to reach this stage, it could effectively double the period with even some grasslands taking around 10 years to achieve their target condition.
This also seems to contradict the mechanisms of the metric itself, rendering the advance creation tab of the ‘temporal risk multiplier’ and its associated unitary bonus for starting works before units are used for a development’s planning obligation, effectively useless. It may be the case that this will be reworded, or alternatively a major rethink of the process has occurred, granted one would expect this to have received far greater comment than a small subsection.