Biodiversity Net Gain: February 2023 Update

The Environment Act 2021 introduces a statutory requirement for biodiversity net gain to be achieved on new developments and requires that planning permissions in England must be granted subject to a pre-commencement condition that development cannot begin until the developer has a biodiversity gain plan containing the relevant information and showing that the biodiversity gain objective will be achieved. Both planning conditions and planning obligations may be required in order to secure the biodiversity gain objective. Secondary legislation will need to be introduced to bring biodiversity net gain into force.

In January 2022 the Government launched a consultation on how biodiversity net gain should be implemented, and has finally published the consultation findings, setting out how it proposes to implement biodiversity net gain. Some of the key takeaways are as follows:

- The Government has decided that the types of development that will be exempt from biodiversity net gain will be more limited than previously indicated.

- The following exemptions will apply:

Only sites that are smaller than 25 sqm (or involve 5 linear metres of habitat) will be exempt under the de minimis provision;
Householder applications will be exempt;
Small scale self-build will be exempt;

- There will be no exemptions for change of use applications or for temporary planning permissions;

- There will be no exemptions for previously developed land;

- There will be no exemptions for development that would be permitted development but for a site designation (for example conservation areas, or AONBs).

- If a site achieves greater than 10% net gain, the excess quantum of biodiversity unit could be used to offset other development.

The Government has indicated that regulations implementing biodiversity net gain will be brought into force by November 2023. We will be digesting the regulations as soon as they are published.