Our previous blog on Biodiversity Net Gain (BNG) considered the Government's progress towards the implementation of the mandatory BNG regime for certain town and country planning applications by the then intended November target date. That blog noted the Government's lengthy 'to do' list for the implementation of the new regime, so it was perhaps no surprise that the Government subsequently pushed its proposed implementation date back to January 2024. This briefing provides an update on the Government's progress towards meeting this new target, as well as its plans for the introduction of BNG for Nationally Significant Infrastructure Projects (NSIPs) and the latest on Marine Net Gain.
The Revised Timetable
Although announcing the delay of BNG by two months, the Government's press release cheerfully declared that BNG had moved "one step closer". Whilst the precise date that BNG will be going "live" in January remains to be announced, the revised timetable looks like this:
- November 2023: All outstanding BNG guidance and regulations to be published.
- January 2024: BNG to take effect for most Town & Country Planning applications.
- April 2024: BNG to take effect for small development.
- 2025: Implementation of BNG for NSIPs.
Updates on BNG for NSIPs and Marine Net Gain
The Government has since published further detail on the implementation of BNG for NSIPs, setting out the following timetable for this:
- March 2024: Consultation on the biodiversity gain statement
- September 2024: Publication of final version of the biodiversity gain statement
- November 2025: BNG to take effect for NSIPs.
Additionally, in early December the Government published its response to its summer 2022 consultation on Marine Net Gain (about which we previously wrote here). Since Marine Net Gain remains at the early conceptual stage, there is no timetable for its implementation yet, with the Government intending to consult further with stakeholders once it has developed the concept further.
The drip drip of guidance by blog…
Returning to the more immediate issue of the implementation of BNG in January 2024, as noted in our previous blog, the Government's efforts until recently had mainly comprised of publishing guidance on quite specific aspects of the new regime in a seemingly random order. Increasingly this guidance had started to appear in DEFRA's Land Use Blog, rather than being published on DEFRA's website as per the early BNG guidance.
The publication of the above timetable did not immediately buck this trend, with a series of blogs being published on the following matters:
- Irreplaceable habitats and BNG: what you need to know – a short piece of guidance which indicates that the initial list of irreplaceable habitats will broadly mirror the list in the National Planning Policy Framework. There will be a public consultation on the 'proper' definition in the second half of 2024.
- Offsite BNG: what can you do after 30 years? An oddity, not just because of its timing (it was issued in the immediate wake of BNG's implementation being delayed) but because it was rather a statement of the obvious: After 30 years, land can essentially either stay as BNG land or be used for other purposes, subject to any continuing legal obligations on the land. Naturally DEFRA is hoping for the former and that there will be financial incentives to support this in the future.
- Biodiversity gain plan: Draft template and guidance – The template is essentially a 9 page questionnaire to show how a development will achieve BNG and so flesh out one of the key statutory concepts in the new regime: Biodiversity gain plans. (It should be noted that there will be a separate template for phased development, which at the time of writing remains to be published). There are two accompanying sets of guidance (one for developers and one for applicants) which illustrate the mechanics at the heart of the new regime. In summary, the biodiversity gain plan is to be submitted post-planning in order to discharge the mandatory biodiversity net gain condition on the planning permission. Development will not be able to commence until the biodiversity gain plan has been approved.
- Incorporating Local Nature Recovery Strategies (LNSRs) when planning for BNG – a summary of how LNSR and BNG polies will join up. In particular, LNSRs can support a strategic approach to off-site BNG delivery. DEFRA will be setting up a webinar in early 2024 on this subject.
- BNG for land managers – step by step flowcharts – DEFRA has published two flowcharts, one for where a landowner begins habitat creation in advance of selling the corresponding biodiversity units ('Habitat banking') and one for where a landowner creates habitat to meet the requirements of a development upon the sale of biodiversity units ('Bespoke habitat creation').
…and then a flood of secondary legislation and formal guidance
On 29 November 2023, just about keeping to its revised timetable, the Government announced the publication of the draft secondary legislation for the new BNG framework. This introduced the following six sets of draft regulations, all of which are required to go live together in order to implement the new BNG regime:
- The Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations
- The Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations
- The Biodiversity Gain Site Register Regulations
- The Biodiversity Gain Requirements (Exemptions) Regulations
- The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations
- The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations
As well as publishing the draft regulations, since 29 November DEFRA has uploaded multiple pieces of new guidance to its website to tie in with the draft regulations. DLUHC has also published draft biodiversity net gain planning practice guidance. The draft planning practice guidance mentions an additional set of regulations to implement BNG: The Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations. At the time of writing, these commencement regulations do not appear to be available despite the draft planning practice guidance indicating that they will provide "transitional arrangements for section 73 permissions".
In total, including further material on DEFRA's Land Use blog, almost twenty new pieces of guidance have already been published since 29 November – an average of more than one new piece of BNG guidance per day. With multiple sets of draft BNG regulations to consider, that is a lot for stakeholders to get to grips with in a very short space time and it is still not clear how much more guidance there is to come. Some of the guidance that has been published is also itself in draft, meaning that there are some further moving parts here.
Conclusion
We will be looking at the newly published regulations and guidance in future blogs in our ongoing series on BNG, as well as further progress on the introduction of BNG for NSIPs and Marine Net Gain with a consultation relating to the former to come in the spring.
In the meantime, there really can only be one conclusion to this particular blog: That the recent publication of the draft regulations and guidance means that the mandatory BNG regime will almost certainly now be taking effect for major planning applications in January 2024, as per the Government's revised timetable.
Whether industry stakeholders will be ready is, of course, an entirely separate question.
The sheer amount of material that has been published by the Government since the end of November – and which may still yet be published - means that there is an awful lot for stakeholders to get to grips with before implementation in January (particularly when one factors in the Christmas break in-between). The irony is that for a long time it was the absence of such material that raised concerns about the industry's readiness for BNG; now we are at risk of having the opposite problem, especially if we end up with an Advent calendar's worth of new BNG guidance by Christmas.
