The Government’s proposals to require new development to achieve at least a 10% net gain in biodiversity came a step closer – and a little clearer – this week with the publication of draft regulations setting out in somewhat more detail how the system will work.
Essentially, with a very few exceptions, from the coming into force of the regulations (anticipated to be February 2024) all new planning permissions for development will be granted subject to a condition that development may not be begun until a biodiversity gain plan has been submitted to and approved by the local planning authority (or on appeal to the Secretary of State). For phased development a condition will be imposed such that development in each phase shall not be begun until the biodiversity gain plan for that phase has been submitted and approved.
New planning applications must be accompanied by a statement whether the applicant believes that planning permissions for the development, if granted, would require a biodiversity net gain condition as described above. Almost all developments will. There are a few exceptions including householder development (residential extensions etc), self-build developments of 9 or fewer dwellings; “de minimis” development (where less than 25 sq m of habitat or less than 5 m of linear habitat - hedgerows etc - would be lost) and sites which are solely for the purpose of providing BNG for developments elsewhere.
If a BNG condition would be required the application must be accompanied by details and supporting calculations of the pre- and post-development biodiversity value calculated in accordance with Natural England’s online metric. The post-development value must be at least 10% higher than the pre-development value.
A biodiversity gain plan itself must show in detail how the 10% biodiversity net gain will be achieved and should comply with the “biodiversity gain hierarchy”, which requires actions to be taken in the following order of priority:
1. Avoid adverse effects on onsite habitat
2. If 1. Is not possible, mitigate the effects
3. If 2. Is not possible, enhance the on site habitat
4. If 3. Is not possible, create onsite habitat
5. If 4. Is not possible, provide offsite habitat
6. If 5. is not possible, purchase biodiversity credits form a registered scheme.
Where the hierarchy is not followed, justification for such departure must be included in the plan and the local planning authority may take into account the reasons for such departure in deciding whether to approve a plan.
Where the habitat affected is “irreplaceable habitat” (e.g. ancient woodland and “ancient” and “veteran” trees) the effect of the development on the habitat must be minimised and offsite habitat and credits cannot be used in the plan.
Plans must also include details of the arrangements for maintenance for at least 30 years of habitat enhancement. (These will already be secured in a case where credits are being purchased because the owner of the offsite land will have entered into a s106 agreement or conservation covenant to that effect.)
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