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Biodiversity Net Gain: New  application validation requirements from 12 February 2024
All planning applications made on or after 12 February 2024* must state if the anticipated planning permission would be subject to the biodiversity gain condition, and if not, why not.

If the anticipated planning permission would be subject to the biodiversity gain condition, because it would not be exempt or excepted (most major development) the application must be accompanied by:

Completed biodiversity metric calculation tool or tools showing how the biodiversity value(s) of the onsite habitat has been calculated. The date on which the onsite habitat biodiversity value is calculated will depend on whether the site has been degraded or cleared and, if it has, when that degradation took place.

Description of any irreplaceable habitat within the application site boundary.

Plan showing the location of any onsite habitat included in the biodiversity calculations and the location of any irreplaceable habitat.

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Top Ten tips for BNG

Top Ten tips for BNG

Heather Overhead 18 Jan 2024
With the mandatory requirement set to come into force on major planning applications[1] made from 12th February 2024, I’ve set out some bite size pointers on BNG if you work in the development industry.

 

1. New validation requirements and changes to the application forms

The planning application forms will change to require either:
  1. a statement as to why the application is exempt from BNG; or

  2. the provision of relevant information such as the pre-development onsite biodiversity value and a map showing the onsite habitats, confirmation of whether habitats have been degraded and of the presence of irreplaceable habitats.
   

2. Cannot avoid a pre-commencement condition

  1. The Biodiversity Gain Plan, which must be submitted to discharge the BNG condition, cannot be formally submitted until the day after planning permission is granted. This is the case even if all BNG is to be provided onsite as part of the scheme. It will be subject to the usual target timescale for the determination of discharge of condition applications.
 

3. There’s no room for manoeuvre:

  1. A section 73 application cannot be used to vary or remove the BNG condition even for viability reasons

 

4. Determining the Biodiversity Gain Plan – considerations are limited:

  1. Local Planning Authorities (LPAs) must approve the Biodiversity Gain Plan if they are satisfied that the stated biodiversity values are correct, that any offsite biodiversity gains are registered and allocated to the development, that any biodiversity credits have been purchased for the development, and that 10% BNG is provided.
     
  2. LPAs must also take into account how the Biodiversity Gain Hierarchy will be followed – this is where the discretion for approving the plan lies.

5. No need for biodiversity gains to be local to the losses (despite what a LPA might prefer)

  1. As long as the LPA accept that it is not feasible to deliver the required BNG onsite, the location of the offsite biodiversity gains should not affect the determination of whether to approve the Biodiversity Gain Plan. Any insistence by a LPA to have the compensation delivered in its area is not supported by legislation. However, it should be noted that the Statutory Biodiversity Metric applies a negative weighting to offsite units based on distance from the development site.
 
 

6. Specific approach for phased permissions

  1. For phased permissions, an Overall Biodiversity Gain Plan must be submitted prior to commencement of any development, and a Phase Biodiversity Gain Plan must be submitted prior to commencement of each phase.
  

7. Transitional arrangements for Reserved Matters and Section 73 permissions

The BNG condition won’t apply to:
 
  1. Section 73 permissions where the original permission to which the S73 relates was either granted or made before the implementation date; or

  2. Reserved matters approvals where the outline permission was made prior to the implementation date.
  

8. Get your (priority species) ducks in a row early

  1. Discuss the proposed approach to meeting the BNG requirement with the LPA throughout the determination of the planning process to minimise likely delays

  2. The process for securing offsite biodiversity gains could be lengthy and expensive so explore your options early with input from planning, ecology and legal professionals as necessary
  

9. Delay Delay Delay!

There’s plenty of scope for delay throughout, including:

  1. Getting to grips with validation requirements;

  2. During determination LPAs may want to understand how the BNG requirement will be met;

  3. Another pre-commencement condition to discharge before you can start on site;

  4. More demand for resources and skills; and

  5. the Biodiversity Gain Site Register application and allocation processes.
  

10. Use relevant experts and share experiences

  1. The national system is very prescriptive, and will require specialist input from ecologists and solicitors and potentially land agents – speak to the relevant experts early on in the process to reduce the likelihood of delays;

  2. The national system represents a significant change to the planning system –sharing experiences of good practice and helpful approaches could help pave the way for a smoother transition all round.
 

How can we help?

We can help you meet your BNG requirement; whether you need general advice, help finding offsite gains, discharging a BNG condition or anything in-between we have the experience, knowledge and contacts to deliver for you.

[1] “major development”  means development involving any one or more of the following—

(a)  the winning and working of minerals or the use of land for mineral-working deposits;

(b)  waste development;

(c)  the provision of dwellinghouses where—

(i)  the number of dwellinghouses to be provided is 10 or more; or

(ii)  the development is to be carried out on a site having an area of 0.5 hectares or more and it is not known whether the development falls within sub-paragraph (c)(i);

(d)  the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or

(e)  development carried out on a site having an area of 1 hectare or more;

 

 

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