New mandatory biodiversity net gain requirements for planning applications

All planning applications submitted to a local authority, on or after the 12 February 2024, will now have to meet mandatory biodiversity net gain (BNG) requirements under the Environment Act 2021 across England,  unless they fall within one of the limited exemptions.

This marks a further step by the government towards ensuring that local authorities are meeting the biodiversity net gain objective. This article highlights the exemptions and the effects of the regulations that are now in place.

What are the exemptions?

Applications for planning permission made before 12 February 2024 will not be required to provide for BNG.

Applications pursuant to S73 permissions  (minor material amendments to another planning permission) are exempt if the original permission was granted before 12 February 2024, or the application for the original permission was submitted to the local authority before 12 February 2024.

What are the effects of the regulations?

The regulations have the following effects: 

• It allows local authorities to make the BNG requirement a planning condition. 
• The amendment requires there to be a biodiversity net gain of 10% from the pre-development biodiversity value. BNG can be provided on site, or by the purchase of biodiversity credits. 
• Imposes a requirement that planning permission granted in England subject to the condition that development may not commence until a BNG plan is submitted and approved by the local authority. 

There are very limited exemptions to this, including:

• If the planning permission is granted by development order.
• An urgent crown development.
• The secretary of state may exclude an application for planning permission granted under section 73A TCPA 1990 , applications for planning permission where the development has already been carried out, or such description as the secretary of state specifies in regulations to follow.

There are further transitional exemptions for small sites until April 2024 and small self-build projects or other householder applications. However, they are all very limited.

Why have the new regulations come into place?

The new regulations provide for a public register to record off-site mitigation and the allocation of any habitat enhancement. A financial penalty of up to £5000 can be imposed for providing false or misleading evidence to the register. 

For more information, please contact David Richardson.