The commencement date for the BNG regulations has been confirmed as 12th February.

The draft for the secondary legislation for the new Biodiversity Net Gain (BNG) framework has been long-awaited and postponed. However, it was finally released at the end of November 2023. Along with it, Natural England and DEFRA have released six statutory instruments which will become mandatory along with BNG on 12th February 2024. Together, the six statutory instruments will help to deliver a 10% uplift for BNG.

So, what is BNG and who will it apply to? BNG is a new law under the Environment Act 2021 and Town and Country Planning Act 1990. It is a new way of creating and improving natural habitats and ensuring that a development will have a measurably positive impact (net gain) on biodiversity compared to what was there before. Developers must enhance the land they plan to develop on by at least 10%, resulting in more or better-quality habitats. It will apply to major developments from 12th February 2024 and to small sites from 2nd April 2024. This will apply to developers, local planning authorities, landowners, and land managers, with relevant guidance available.

Statutory DEFRA BNG Metric

The biodiversity of a habitat is measured using standardised biodiversity units that consider the size, quality, location, and type of habitats present. To calculate these units, the statutory DEFRA biodiversity metric must be used to show how many units a habitat has before development, and how many units are needed to replace what could be lost and achieve a 10% gain post-development. A habitat survey is performed on-site by an ecologist to collect this data, which is then input into the metric, calculating the biodiversity units.

Developers can achieve the 10% BNG through the enhancement and restoration of biodiversity on-site but they should prioritise avoiding and minimising any biodiversity losses, which is the preferred route. If this cannot be fully achieved, developers can look off-site to other land to make up the remaining biodiversity units. It’s important to note that the farther the off-site land is, the lower the credits. As a last resort, statutory biodiversity credits can be bought if the 10% uplift cannot be achieved on-site or off-site.

These habitats will then have to be managed and monitored for at least 30 years to allow the habitats to achieve their desired target condition and/or habitat type. This will either be the responsibility of the developer or the land manager who will need to follow recently released guidance, habitat management, and monitoring plans and templates. This 30-year period starts from the time the initial habitat creation or enhancement is completed, for example, after a year of tree planting or wildflower seeding.

Land managers and owners wanting to sell off-site BNG units to developers will need to secure their land via a conservation covenant or s106 agreement and then register this off-site land on the statutory biodiversity gain site register to be eligible, recording the biodiversity units available for purchase and the allocation once sold. This process of habitat banking can potentially fund nature recovery on your land, which could improve local biodiversity by either increasing the linkage of wildlife corridors or providing valuable habitats for wildlife.

This will all need to be approved and overseen by your local planning authority (LPA) from whom you will need planning permission and approval before any development starts or sale of credits is made.

But this doesn’t mean any habitat can be removed and replaced. Certain habitats have been deemed priority habitats, meaning it is best to avoid or minimise any damage as bespoke compensation will likely be required. Some habitats are even irreplaceable such as ancient woodland, veteran trees, and blanket bog and should be avoided and retained as they cannot be easily recreated. If any impact is caused, strong justification is needed, and bespoke compensation will need to be agreed upon with your local planning authority. Even though the 10% net gain is not applied to irreplaceable habitats due to their value, enhancements of irreplaceable habitats can contribute towards your BNG requirements.

Biodiversity net gain could be seen as another roadblock in the way of development, but if implemented correctly and embraced, BNG could improve developments, provide more open green space, reconnect people with nature, and strengthen the protection of England’s most rare and valuable habitats.

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