Viewpoint - 04/12/2023

Draft Biodiversity Net Gain Planning Practice Guidance

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On the 29th November 2023, the Government issued draft planning practice guidance which provides the detail for the new Biodiversity Net Gain (BNG) framework. With BNG applying to most new major development under the Town and Country Planning Act (TCPA) from January 2024 and to small sites from April 2024, LSH unpacks what this will mean for developers going forwards.

The draft regulations will require that qualifying planning applications consented under the TCPA or the Planning Act 2008 to deliver a minimum 10% BNG (in the context of their developments). Under this new process, there will be a new standardised planning condition pertaining to BNG which must ensure at least 10% net gain is met for a development via the submission of a ‘Biodiversity Gain Plan’ once the LPA has granted permission. Development may not begin until the Biodiversity Gain Plan is deemed acceptable and is discharged by the Local Planning Authority (LPA).

The draft published guidance also points out that, when determining an application, ‘it will generally be inappropriate to refuse an application on the grounds that the biodiversity gain objective will not be met’, although the guidance does highlight that LPAs will need to consider more broadly if the condition is capable of being successfully discharged. This should hopefully provide developers with some comfort that BNG matters should not, in theory, unduly delay the determination of planning applications.

In the scenario where applicants don’t believe the proposed development would be subject to a BNG condition, applicants will still be expected to provide a statement within their planning application setting out why they believe this is the case. Applications will be deemed invalid if the relevant information on BNG is not provided and as such developers will need to keep this in mind when submitting applications going forward.

Steve Hemming, Head of Planning for the Midlands’ Planning, Regeneration + Infrastructure LSH team, had the following comments on the new draft guidance: “Whilst BNG is not a new concept, it’s imminent adoption and how it will operate still seems to be unclear to some developers and Councils. There remain some gaps in the regulations and guidance which will need to be in place before adoption in January, and there is a concern that this will be another potential delay in the delivery of planning permissions and hence development. This is likely to be exacerbated by the apparent resource issues within LPAs of staff who will be available to deal with BNG considerations.”

It is apparent that there is a lot to unpack within the new regulations for LPAs, and it is envisaged that there will be an initial period where LPAs are getting to grips with how they deal with the new regulations once they come into force. Whether there will be enough public resource within authorities to effectively monitor and enforce BNG will need to be carefully monitored in the coming weeks and months ahead.

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