Biodiversity net gain (BNG): a new statutory planning condition under the Environment Act 2021

From the 9th of November 2023, the Environment Act 2021 brings in a new statutory pre commencement planning condition which cannot be overridden on cost or viability grounds. This condition will require the submission of a biodiversity plan for most of the development that requires planning permission, with some exemptions. 

The biodiversity plan will need to: 

• Assess the biodiversity value before and after the development takes place, as ‘biodiversity units’ according to the relevant Defra metric, which uses habitat type, location and condition, as well as other measures, as a proxy for biodiversity. 
• Demonstrate how the development has been designed to minimise the impact on biodiversity and, where there is an impact, detail the scheme that will be put in place to achieve a minimum 10% net gain in biodiversity. 
• Illustrate when the scheme will start and how the scheme will be managed and monitored for a period of at least 30 years to show that the gain has been delivered and maintained. 

The biodiversity scheme can be delivered either on or off-site. 

If they cannot be created on-site, biodiversity units can be either created by the developer on other land they control or purchased from a third party in the newly created market. The value of units will depend on the usual market factors, as well as their type and their location relative to the development, both of which are considered by the Defra metric. Once you get beyond the boundary of the local planning authority in which the development is taking place a discount factor is applied within the metric. This means that the greater the distance between the development and the biodiversity scheme, the fewer units created. 

If it is not possible to provide either of these on-site or off-site solutions, the Government will be able to sell a developer biodiversity credits as a last resort. By statute, these credits will be significantly more expensive than the open market alternative. 

All of this will be tied up in a Section 106 planning agreement and/or a conservation covenant, with the biodiversity land being added to the national register, before the planning authority can discharge the condition and development can proceed. 

Similar proposals will apply to Nationally Significant Infrastructure Projects from 2025. Small sites that meet certain criteria in terms of development size and acreage have also been given an extended transition period until April 2024. 

This could have a significant impact on the cost and deliverability of development projects, but also represents an opportunity to deliver positive changes for biodiversity, enhance natural capital assets and help deliver ESG projects at a landscape scale. 

 

Biodiversity net gain initial considerations: 

1. Start with identifying your BNG requirements: how many units when and where. 


2. Identify any existing projects within your portfolio or land bank that need a redesign as their design may not meet the new tests – are they still viable? 


3. With several ways to deal with BNG, a considered strategy should be developed at an early stage, so that the best solution, achieving multiple benefits, can be delivered. 

Biodiversity net gain services from Carter Jonas: 

• Work with you to develop a strategy to address BNG, identify your requirements, design, and implement the best solution to achieve multiple benefits. 
• Project manage BNG schemes. 
• Broker biodiversity units. 
• Find suitable sites for BNG. 
• Create development finance vehicles for BNG delivery at scale.