In light of the Government’s consultation which opened this week, Mel Clinton gives further insight into how the biodiversity net gain requirement will work.
The Government has published its consultation on the practical and legal details of implementing the 10% biodiversity net gain (BNG) requirements in relation to new developments. Comments can be made up to 5th April 2022.
The consultation document reiterates most of the information in my previous post but also begins to bring some clarity on how the net gain requirement will work. Some of the key headlines are summarised below.
Planning Applications
Biodiversity gain plans (BGPs) will not have to be submitted with planning applications, not least because further site investigation is often required to establish the full detail of the BGP. However, all relevant applications will have to include BNG information, including the biodiversity value of the site prior to development, the BNG approach and any off-site BNG proposals. This applies to outline and phased applications which will need to set out how the BNG will be achieved across the whole development.
Exemptions
The following are proposed to be exempted from the 10% BNG requirement:
- Impacts below a de-minimis threshold
- Householder applications
- Change of use applications
The Government is also consulting on exempting applications (where permission is needed) for creating BNG sites, on the basis that a requirement for these themselves to account for a 10% BNG could reduce or negate their purpose in providing BNG for developments that are unable to meet their net gain requirement on-site.
Whether to exempt self- and custom-build is part of the consultation, but the Government has indicated it does not see a clear need to do this. In respect of costs, the consultation document notes that BNG costs should be passed into land prices, not build costs – an important reminder that there is no exemption from BNG on viability grounds.
The de-minimis threshold relates to negligible impacts to low or medium distinctiveness habitats, as defined in the published biodiversity metric. The consultation document provides the examples of small-scale schemes such as street furniture or boundary walls as development likely to be under the threshold. Related to this, sites which have a baseline biodiversity score of zero, such as land that is wholly hardstanding, will not need to provide BNG.
Change of use planning applications are proposed to be exempted but the consultation document asks the question whether there are certain types of change of use that may impact on habitat.
Importantly, the previously trailed possibility of exempting certain types of brownfield sites is not proposed to be taken forward.
Local Planning Authorities
It is good news that the consultation document commits to fully funding the new burdens that the BNG requirement will place on local planning authorities and it is important that this is effectively carried through, given the widespread difficulties caused by resource constraints.
Local planning authorities are also able to set BNG requirements above 10% in their Local Plans, subject, of course, to the standard need for sound evidence which will be tested through the examination process.
Off-Site Biodiversity Net Gain
Off-site BNG locations must be on the national biodiversity site gain register and the consultation document sets out proposed details of the requirements for registration.
Provision of BNG local to the development site is encouraged and this is incentivised by the spatial risk multiplier within the biodiversity metric. Where appropriate, provision should also relate to Local Nature Recovery Strategies.
Additionality
The principle of additionality is embodied within the approach to BNG. Open space, for example, may contribute to a green infrastructure network and provide habitat, but in doing so there must be an evidenced 10% BNG. Where measures are required to mitigate protected species’ impacts, at least 10% of the BNG provision should be over and above these measures.
The Biodiversity Units Market
The market for providing units of biodiversity net gain (land converted/enhanced as habitat) is estimated to be worth £135m.
Any landowner/manager can provide BNG units, subject to the national registration requirements referred to above. In cases where on-site BNG provision relating to a development exceeds the 10% requirement the Government is minded to allow sale of the excess units. This would need to be subject to local policy considerations.
Timescale
The consultation confirms that it is proposed that the BNG requirement will come in to force in November 2023.
With regard to small sites (less than 10 homes/0.5ha), use of the simplified metric is confirmed. In addition, the consultation is considering whether to provide a longer transition period of up to a further 12 months for small sites.
As in the previous post, whilst November 2022 may seem a way off, it is well worth getting to grips with the emerging requirements in respect of pipeline and future projects that will enter the planning system in just under two years’ time. For projects of this type where land deals are not yet complete, BNG requirements will be an important consideration. The developing market in BNG units is also something worth following for those sites that cannot meet the requirement entirely on-site.
In the meantime, as above, comments can be submitted on the Government consultation up to April this year.
Want to discuss biodiversity net gain? Contact our Planning Team or Mel Clinton (01225 442424).