New requirements as Biodiversity Net Gain becomes mandatory from 2024

November 2023

In January 2024, Biodiversity Net Gain (BNG) is set to become a mandatory requirement for almost all development sites. Many developers have become familiar with the concept over the last few years as local planning authorities (LPAs) have begun to request applications are accompanied by a BNG Metric Assessment. On 29 November 2023 the government’s Statutory Metric was launched which will need to be used for all new planning applications once BNG becomes mandatory (calculations using previous versions of the metric will not be accepted by LPAs).

Under the statutory framework for biodiversity net gain, every grant of planning permission is deemed to have been granted subject to a general biodiversity gain condition (to secure the biodiversity gain objective). To recognise this distinction from general planning conditions, the LPA must not include the general biodiversity gain condition in the list of conditions imposed in the written notice when granting planning permission.

Under this condition, a Biodiversity Gain Plan must be submitted and approved by the LPA before commencement of the development. The information required to be set out in the Plan is prescribed by legislation and includes much of what will likely already have been produced in any BNG report which accompanied the Metric at the planning application stage, alongside plans and management and monitoring arrangements.

In regard to this latter point, a specific Habitat Management and Monitoring Plan (HMMP) will be required to be submitted which contains information on the future management of the land and arrangements for monitoring the progression of habitats towards their target conditions within prescribed timescales. Importantly the HMMP must also include details of a feedback loop of how monitoring results will be used to modify future management actions through the use of adaptive management. Applicants are encouraged to provide a draft HMMP as part of the application.

If a development cannot achieve a net gain by on site provisions alone, offsite habitat enhancement or creation can be used to top up the BNG provision. Any offsite land will need to be registered as part of a new formal biodiversity net gain register to be set up and maintained by Natural England.

The above measures are brought forward under the Environment Act 2021, which contains the enabling provisions for BNG, alongside six new Regulations (secondary legislation) which bring into law the Act’s provisions. These are namely:

  1. The Biodiversity Gain Requirements (Exemptions) Regulations [2024]
  2. The Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024
  3. The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations [2024]
  4. The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations [2024]
  5. The Biodiversity Gain Site Register Regulations 2024
  6. The Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024

Read more about biodiversity net gain in our brochure ‘Briefing for developers. Biodiversity Net Gain – The Basics’ accessible from our website here.

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