On 12 February 2024 the Biodiversity Gain Regulations came into force.
These Regulations establish the system for Biodiversity Net Gain (BNG), which is a form of creating and improving natural habitats. It ensures development has a measurably positive impact (‘net gain’) on biodiversity. All major housing developments are required to deliver at least a 10% benefit for nature with England becoming the first country in the world to make Biodiversity Net Gain a legal requirement.
We've set out some information below to explain the legislation.
Background
In England, the Environment Act 2021 amended the Town and Country Planning Act 1990 so that BNG became mandatory. It made provision for grants of planning permission to be subject to a condition to secure that the biodiversity gain objective is met. This will help deliver the government’s commitment to halt species decline by 2030. It means developers in England are now legally required to deliver at least a 10% increase in biodiversity when building projects are undertaken. As such, a development will result in more or better quality natural habitat after the development that was in existence before development. Schedule 7A of the Town and Country Planning Act 1990 sets out the legal framework for net gain.
In particular this will apply to those who are a developer of:
A developer can achieve 10% BNG by:
In order to provide more detail on how the net gain system works, the following statutory instruments have been published:
The sections below contain more information on this legislation.
Biodiversity Gain Site Register
Under the Biodiversity Gain Site Register Regulations SI 2024/45 land in England is to be registered and appropriately recorded under the biodiversity gain site register. This can be done based on either a conservation covenant or a section 106 agreement, based on the land's eligibility.
Under a section 106 agreement, applications can be only be made by individuals obligated under a planning agreement to carry out habitat enforcement works on the land or maintain habitat enhancement achieved through required works.
Applications for registration related to a conservation covenant can only be made by individuals:
There are certain conditions that must be met for:
If a habitat enhancement to a development is not recorded in the biodiversity gain register, as long as the projected details of the habitat entry already include the allocated enhancement information, an individual can apply to record the allocation. This must be made by someone obligated under a conservation convenant or a section 106 agreement to carry out or maintain the enhancement works.
If recorded information in the register is incomplete, inaccurate or needs to be removed, an application can be made to amend this.
If an amendment of an entry in the register takes place without an application and notice of intent, there are certain provisions that apply where:
In these cases, Natural England can amend the entry to ensure accuracy and completeness of the information.
Where land is registered in an entry to the register in relation to a conservation convenant or section 106 agreement and no allocation of any habitat enhancement to a development is recorded in the entry, an application to have an entry removed from the register can take place.
Biodiversity Gain Requirements (Exemptions)
Certain developments are exempt from meeting the biodiversity gain requirement under the Biodiversity Gain Requirements (Exemptions) Regulations SI 2024/47 which would otherwise be a condition to grant planning permission.
They provide for temporary exemptions for small developments where:
Additionally, those Regulations make exemptions where the biodiversity gain planning condition does not apply in relation to planning permission for development where the development:
The biodiversity gain planning requirements do not apply in relation to developments forming any part or are ancillary to the high-speed railway transport network.
Where planning permission for a development was solely granted to fulfil a biodiversity gain condition in relation to another development, these works are exempted from biodiversity gain requirements.
Lastly, the biodiversity gain planning condition does not apply in relation to planning permission for a development which:
Biodiversity Gain Requirements (Irreplaceable Habitat)
The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations SI 2024/48 define “irreplaceable habitat” in relation to Schedule 7A to the Town and Country Planning Act 1990 and modify its application in respect of habitats falling within the definition.
The requirement that applies to developments for which planning permission is granted (in order to increase the biodiversity value of the development by a specific percentage) is disapplied and other arrangements must be made in order to minimise the effect of the development on the biodiversity of the onsite habitat where that habitat is irreplaceable.
The habitats that are considered irreplaceable for biodiversity gain purposes are listed in the Schedule to the Regulations, and include habitats, such as:
Biodiversity Gain (Town and Country Planning) (Consequential Amendments)
Changes are made to the Town and Country Planning Act 1990 via the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations SI 2024/49 in relation to biodiversity gain.
The amendments involve:
Biodiversity Gain (Town and Country Planning) (Modifications and Amendments)
The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations SI 2024/50 make changes to the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order SI 2013/2140 as well as the Town and Country Planning (Development Management Procedure) (England) Order SI 2015/595.
They also make non-textual modifications to Schedule 7A to the Town and Country Planning Act 1990 for the purposes of:
Biodiversity Gain Site Register (Financial Penalties and Fees)
Finally, under the Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations SI 2024/46, if false or misleading information is supplied relating to an application made to the biodiversity gain register, a financial penalty of £5000 can be imposed.
The various fees applicable to different applications are set out in the Schedule to those Regulations.
Relevant guidance
Useful guidance that will be useful when understanding BNG includes:
For more information on this subject, see:
