The long awaited secondary legislation on Biodiversity Net Gain (“BNG”) is finally here fleshing out the bones of the Environment Act 2021 (“EA 2021”). These new statutory instruments will deliver mandatory BNG for all new planning applications made post 1 February 2024.
There are 6 Statutory Instruments in total and whilst we have seen the draft wording they will all require formal Parliamentary approval early next week.
Accompanying guidance has also been published, but, for now, this is an initial review of the draft legislation that is available.
This is the nuts and bolts of the BNG regime building on what the EA 2021 told us which is that BNG sites will have to be registered in the biodiversity gain site register (“BNG Register”) in order to be eligible. What remains unclear is to what extent any onsite BNG provision supplied by developers will need to be on the BNG Register.
Clause 10 of Schedule 14 to the EA 2021 provides that “Registered Offsite Biodiversity Gain” relates to enhancement of habitat recorded in the BNG Register. This neatly omits onsite provision from the requirements and scrutiny of the BNG Register and nothing in the Register Regulations remedies that.
Any such onsite provision may well be delivered through the mechanism of a section 106 agreement or conservation covenant and generally meet the eligibility criteria for site registration set out in Regulation 6.
Onsite BNG provision supplied by developers does not need to be registered on the BNG Register nor allocated, but significant onsite gains must still be secured legally for at least 30 years after the development is completed. The government has said it is exploring how onsite information can be extracted from planning permission and published on the BNG Register so that all BNG information, whether onsite or offsite, is accessible in one place
The Register Regulations provide for the mechanism of either a section 106 agreement or a conservation covenant to ensure the establishment and maintenance of habitat. They also, at regulation 5(2) ensure no double counting by permitting only one registration against any section 106 agreement or conservation covenant.
It is possible for the same land to be registered more than once (see below in terms of initial registration of a wider area of land and then subsequent allocation to a development) on the register but you cannot register the same agreement more than once.
What is permitted is the initial registration of a larger area of land and then subsequent secondary registration of tranches of that initial registration block using different section 106 agreements or conservation covenants.
This would allow the phasing of habitat production to meet developer led demand over a period of time. It also facilitates the habitat banking model.
Land can also be registered initially under a section 106 and later under a conservation covenant and vice versa. This seems to be aimed at permitting a later transition of agreements from section 106 to conservation covenants if desired.
There is nothing particularly surprising in the new eligibility criteria for land registration set out in regulation 6. There must be a section 106 agreement or conservation covenant requiring works for habitat enhancement and then their subsequent maintenance over a 30 year period. That habitat enhancement must then be linked to a particular development. We have been careful to distinguish, when drafting agreements, between the initial works of habitat establishment/enhancement and their subsequent maintenance for at least 30 years. These two distinct requirements have been included in the Registration Regulations.
What is of some interest is the requirement via the section 106 agreement or conservation covenant that a person monitor the habitat enhancement to ensure delivery of the required outcome in terms of enhancing and maintaining habitat.
The question of who monitors the delivery of the habitat enhancement works and who pays for that has been the subject of negotiation on some deals. That issue is now decided (although already surely inherent in the landowner’s overall obligation to enhance the habitat successfully) in that a person must be obliged to do so by the section 106 agreement or conservation covenant. The question of monitoring costs is one for commercial negotiation between the landowner and developer.
An application to register land under a conservation covenant may only be made by the person required to carry out or maintain works of habitat enhancement or, pursuant to regulation 7 (2) (c), a person who can enforce a requirement to deliver or maintain those works.
This, broadly, places the application responsibilities on the landowner and regulation 7(3) expressly forbids a responsible body under a conservation covenant from making such an application.
If section 106 agreements are not being used then an application to register land under a conservation covenant may only be made by the person required to carry out or maintain works of habitat enhancement.
The detail required here is, unsurprisingly, all about the works of habitat enhancement. A timeline will need to be supplied of works which have already started through to completion works yet to be started.
Where the work has not started details must be supplied of the type, size and condition of each proposed habitat on the land and the projected performance as a result of those works.
Where the work has already commenced details must be supplied of the type, size and condition of each proposed habitat on the land immediately before the commencement of works and the projected performance as a result of those works.
If a person other than a party to the section 106 agreement or conservation covenant has the ability to enforce performance of any such habitat enhancement or maintenance works then their details must be supplied.
Details of the development to which the relevant habitat enhancement works have been allocated must be supplied. In turn, the biodiversity value of the allocated habitat must be demonstrated as must the projected performance of the same.
The applicant must declare that all relevant licences and permissions required to deliver the habitat enhancement works have been obtained and a copy of the relevant section 106 agreement or conservation covenant must be supplied.
As ever, a fee must be paid and the details of that are set out below.
Regulation 12 deals with the situation where an area of land (say 100 acres for example) has been initially registered and then an area (say 10 acres) is allocated to a particular development.
Regulation 17 allows for the correction of details on the BNG Register due to a relevant modification of a section 106 agreement/conservation covenant or for amendment in relation to allocated development.
Changes can also be made to the BNG Register by the operator – Natural England – where it considers that the information in the entry is inaccurate or incomplete. Notice of intent to amend must be given to the relevant parties who may make representations as appropriate.
Land may be removed from the BNG Register where it has not been allocated to a particular development. An application must be made which will be determined by Natural England who may also remove land from the BNG Register on its own initiative. The grounds for such removal are that false or misleading information has been supplied, the land eligibility criteria are no longer satisfied or that the section 106 agreement or conservation covenant has been fully complied with/is no longer in force. Again, notice of intent to amend must be given to the relevant parties who may make representations as appropriate.
Part 9 of the Register Regulations make provision for a right of appeal against Natural England’s decisions in respect of application rejection, register amendment or land removal. The appeal must be made to the First Tier Tribunal.
These regulations confirm that the BNG requirement will not apply to planning permissions made or granted before 1 April 2024 which relate to “small development.” Small development is defined as development which is not major development which is:
The BNG requirement will also not apply to those planning permissions granted under section 73 of the Town and Country Planning Act 1990 where the original planning application was made before the commencement date of these regulations. This is where an application is made for permission to develop land which has already had planning permission given subject to conditions which have not been complied with.
A de minimis exception is also introduced where the development:
The BNG requirement will also not apply to householder applications which mean development to an existing dwelling-house or within its curtilage for any purpose incidental to its enjoyment. The definition does not extend to change of use applications or the alteration of the number of dwellings provided.
Any development linked to the HS2 project will not be caught by the BNG requirement and we know that in general terms any Nationally Significant Infrastructure Projects will not be part of the BNG regime until November 2025.
Confirmation has been supplied that the BNG requirement will not apply if you need to obtain planning permission to create a biodiversity gain site for another development.
Good news for the self-building community as well in that development of 9 or fewer dwellings will not be subject to these new BNG requirements providing the site is 0.5 hectares or less.
These regulations define irreplaceable habitat which is essentially ancient trees and woodland, saltmarsh, blanket bog, lowland fens, limestone pavements and coastal sand dunes.
The effect of the regulations is to modify the BNG principles in terms of these important habitat types. There is no requirement to increase the biodiversity of such habitats by 10% and instead alternative arrangements must be made to minimise the effect of the development on the irreplaceable habitat. This requirement does not apply to phased development as Schedule 14 to the EA 2021 already provides for regulations to be drafted dealing with this scenario.
These regulations provide for the necessary amendments to be made to the Town and Country Planning regime.
These regulations amend section 73 of the Town and Country Planning Act 1990 which deals with permission to develop land without complying with conditions previously attached. The new regulations state that if the conditions attached to a section 73 permission do not change the effect of the development on onsite habitat which is irreplaceable habitat a biodiversity gain plan previously approved as part of the original planning consent will suffice for the subsequent section 73 application. If the section 73 conditions result in the same post-development biodiversity as specified in the original planning application then the earlier biodiversity gain plan will not be regarded as approved for the section 73 application.
These regulations will come into force when the Register Regulations do and provide for a fine of £5,000 imposed by Natural England if false or misleading information is supplied to it. There will be a right to object to a fine imposition and a right of appeal if the process is completed.
For more information, please get in touch with Head of Natural Capital at Michelmores, Ben Sharples.
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