BNG Begins: Considerations at the Application Stage

On the 12 February 2024, mandatory Biodiversity Net Gain (“BNG”) officially arrived! As we outlined in our last article, “Biodiversity Net Gain is a Reality: The Basics”, every grant of planning permission for a major development (unless exempt) will now be subject to a deemed condition to secure at least a 10% increase in the biodiversity value of the habitat to which the condition relates. The condition will apply to smaller developments from 2 April 2024.

In this next instalment of our BNG series, we explore how BNG will need to be approached at the planning application stage; including the information applicants need to include in applications under Part III of the Town and Country Planning Act 1990 (1990 Act), and the changes to application processes which local planning authorities (LPAs) will need to consider following the commencement of the BNG regime.

Mandatory BNG Information required for all relevant Planning Applications

Meeting the biodiversity gain objective will generally be a post-permission matter. The details must be agreed through the submission and approval of a Biodiversity Gain Plan following the grant of planning permission and prior to commencement.

However, that does not mean that BNG can be ignored during the application process. At the application stage, authorities will need to be satisfied that the condition is capable of being met. From 12 February 2024, Article 7 of The Town and Country Planning (Development Management Procedure) (England) Order 2015 is amended by the BNG Regulations[1] to insert new information requirements for all applications for planning permission.

Put simply, applications for planning permission (including outline permission) must now include either:

  1. A statement that the applicant believes that the planning permission if granted would not be subject to the mandatory biodiversity gain condition (i.e. if any of the exemptions or transitional provisions apply) and the reason why; or
  2. A statement confirming that the applicant believes that the planning permission if granted  would be subject to mandatory BNG, accompanied by:
    1. the completed biodiversity metric calculation tool showing the calculation of the pre-development biodiversity value of the onsite habitat on the date of the application (or an earlier date);
    2. the publication date of the tool that was used (note the published guidance suggests also including the version that was used);
    3. if applicable, a statement confirming that the biodiversity value of the onsite habitat is lower than it otherwise would have been (“degradation”) because of the carrying on of activities since 30 January 2020 (if not in accordance with planning permission or certain other types of permission) or since 25 August 2023 (if in accordance with planning permission), in which case the applicant must also provide the biodiversity value on the date immediately before the carrying on of those activities, with supporting evidence as to that date;
    4. the biodiversity value (or values) calculated by using the tool;
    5. a description of any irreplaceable habitat on the land to which the application relates (as per the Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024); and
    6. A plan showing onsite habitat existing on the date of application (or earlier date) and included in the calculations, including any irreplaceable habitat.

LPAs and applicants should also note that the information requirements now apply to every application for planning permission other than an application under s.73 of the 1990 Act where the original permission was not subject to mandatory BNG (Article 7(1B) of the DMPO 2015).

When making applications for small sites during the period between 12 February 2024 and 2 April 2024, applicants will still have to include a statement that mandatory BNG does not apply, because of the temporary exemption for non-major developments. This exemption will, of course, no longer exist from 2 April 2024.

The Planning Portal has been updated to include specific BNG questions for all relevant planning applications so that the relevant information can be provided. Some of the information can also be included in documents accompanying the application. If an application does not meet the information requirements, the LPA must refuse to validate the application.

Pre-Application Engagement and Local List Information

As mandatory BNG represents a systemic change for both developers and LPAs, applicants for planning permission should discuss BNG upfront with LPAs to identify, understand, and resolve key issues. In addition to minimum information requirements, applicants should be prepared to be able to provide further information to assist the consideration of BNG as part of their application.

Where an applicant proposes that delivery of BNG will be secured through planning obligations secured through a section 106 agreement, the government’s Planning Practice Guidance suggests that heads of terms or information related to the obligations should be submitted.

LPAs should consider adding to their formally adopted local list of information requirements so that further supporting information regarding BNG can be requested with planning applications. Whilst it is difficult to predict what further information LPAs might need to require going forward, examples of documents that may assist are “Habitat Management and Monitoring Plans” (to give further detail as to proposals for ongoing management and maintenance of onsite biodiversity) and heads of terms for section 106 agreements for off-site BNG. It is important to remember that local lists should not duplicate the minimum information required in the planning application form, but LPAs should consider any particular BNG matters that may be relevant in their area.

For LPAs considering how to update application processes and local lists with BNG in mind, it will be  important to clearly establish the preferred approach to securing the delivery of BNG before tailoring information requirements and pre-application engagement procedures accordingly.

Let the BNG Begin!

We hope that you found this article on BNG at the planning application stage useful. In the coming weeks, we will be publishing further information about other aspects of the mandatory BNG regime including articles on:

  • BNG at the Determination Stage;
  • Biodiversity Gain Plans;
  • The BNG Hierarchy; and
  • Off-site BNG (Including legal agreements).

Sharpe Pritchard’s planning team is well-placed to advise both applicants and LPAs on a multitude of issues relating to the commencement of the BNG regime, including on how to submit and whether to verify planning applications in accordance with the new requirements.

Please contact a member of our team if you require bespoke advice in relation to the issues raised in this article.

[1] The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024, regulations 13 to 20

Posted in Alastair Lewis, Emily Knowles, Environmental law, Green Goals, James Goldthorpe, Latest news and blog, Local government, Public law, Real Estate, planning and regeneration.