Biodiversity Net Gain (BNG) is a topical concept introduced by the Government through Sections 98 and 99 of the Environment Act 2021. It applies to all Development Consent Orders (DCOs) and Planning Permissions from November 2023. It requires developers to provide a 10% increase in the Biodiversity value, when compared to the undeveloped site. Using Defra’s Biodiversity Metric 3.1, each habitat on a development site is assigned a ‘unit value’ which records its relative biodiversity value. Then, once this has been calculated on the site pre-development, it can then be compared to the post-development site where the 10% uplift must apply.
In 2016 the Environmental Industry organisations in the UK published good practice principles, which defined Biodiversity Net Gain as: Development that leaves biodiversity in a better state than before. It is also an approach where developers work with local governments, wildlife groups, land owners and other stakeholders in order to support their priorities for nature conservation.
Whilst it will be mandatory in planning permission applications post November 2023, there are a few local authorities already applying these Biodiversity Net Gain requirements now. These local authorities require these requirements be secured by a condition, or through a section 106 agreement.
The Governments response to a consultation on this matter stated that the following are all exempt from BNG requirements:
- Low Impact habitats: which are defined by the size of the habitat and the value of the development. These are typically between 2 and 50 square metres.
- Change of use applications.
- Developments which aim to enrich biodiversity, but for the sole reason of discharging BNG obligations elsewhere.
- Householder applications
BNG is expected to be promoted by the developers in the following hierarchical way:
- Through on-site instillation (this may be through avoidance or a reduction in the impact on biodiversity through factors such as the layout of the development, or the selection of the site, or through restoring or enhancement of the existing biodiversity on the site, prior to any development taking place),
- Through increasing BNG on a nearby site yourself or through purchasing units, named ‘biodiversity units’ to offset the lack of BNG increase on the development site,
- Through purchasing Biodiversity Credits from the Government, although this is only a solution if it is impossible for you to arrange on-site BNG, off-site BNG or purchasing a unit to offset the BNG.
BNG must also be maintained for a minimum period of 30 years. This will mean that should a ‘biodiversity unit’ be purchased, or on-site BNG developments take place, these will need to be kept untouched for that period. Evidence of how the BNG enhancements will be maintained for the 30 years will also be required.
What will this mean for Landowners?
This could open up opportunity for land which was previously unable to be used. Land which would previously be unsuitable for development (such as marsh land) now can be used to support development through being used as a ‘biodiversity units’. This could provide a new income stream for landowners, and make use of previously unusable land. However, in the case the land is usable (such as active farmland), landowners may have reservations about signing away their land for 30 years or parting with it entirely.
What will this mean for Developers?
The BNG impact will likely effect not only how developers choose sites, but also the nature of the development itself. The developers must submit a ‘Biodiversity Gain Plan’ to the local planning authority for approval. This plan must show how the biodiversity value relating to the development exceeds the biodiversity value prior to the development taking place by at least 10%. This means brownfield sites will become more attractive, due to their low BNG value prior to the commencement of any development, unlike greenfield sites. These BNG requirements increases costs for the developer through further red tape and it is not yet clear whether these costs will be passed onto the buyer.
How are off-site gains contractually protected?
The off-site gains will be protected by ‘Conservation Covenants’, a new form of agreement introduced by part 7 the Environment Act 2021. This new scheme helps to secure benefits from conservation for public good.
A ‘Conservation Covenant’ is a legal document, entered into voluntarily, between landowners and a ‘responsible body’ (such as the Secretary of State or other bodies defined under the Environment Act 2021) to bind the existing freehold owner or leasehold holder (if for more than 7 years) into restrictive and positive conservation related covenants.
These agreements, registered against the land as a local land charge, will bind these covenants to the land indefinitely, unless expressly stated otherwise. The agreement must contain provisions which—
(i) is of a qualifying kind,
(ii) has a conservation purpose, and
(iii) is intended by the parties to be for the public good,
A landowner can face an injunction or an order for specific performance for breaching the covenants they enter into. Their liability will only cease when they sell the land that has the Conservation Covenant over it, or the Covenant itself expires.
If you are concerned about your BNG obligations, or would like to discuss this further please get in touch.