»Ê¼Ò»ªÈË

In March 2023 . The response outlines the
government’s policy position following the consultation, a summary of which is outlined below.

There was a total of 590 responses to the consultation which helped to inform the development of policy.
Responses were from a range of respondents, predominately LPAs, but also businesses and
membership bodies.

Exemptions – When is BNG not required?

Exempt developments are those that did not need to meet the mandatory BNG requirements. The
Environment Act already made exemptions for permitted development (developments where planning
permission isn’t needed) and urgent crown development.

Alongside this the Biodiversity Metric allows temporary impacts that can be restored within 2 years to be excluded from calculations.

The government consulted on whether any further exemptions are necessary. As a result, government
intent to use regulation to make further exemptions for:

• ‘De minimis’ developments - A development impacting habitat of an area below a threshold of
  25 meters squared or 5m for linear habitat such as hedgerows.
• Householder applications.
• BNG sites (where habitats are being enhanced for wildlife).
• Small scale self-build and custom housebuilding (definition TBC by Government).

»Ê¼Ò»ªÈËbroadly welcomes the exemptions although we are concerned that the de minimis threshold
may be too small in an agricultural and rural context.

It is disappointing that the exemptions don’t account for developments in conservation and designated areas which would ordinarily fall within permitted development rights.

Mandatory net gain requirement

The 10% mandatory net gain requirement will not apply to irreplaceable habitat, instead secondary
legislation will create separate information requirements that can be used by the planning authority
when reviewing a planning application on irreplaceable habitat.

This will include a clear definition of irreplaceable habitat and list of habitat types to be considered irreplaceable.

Through responses to the consultation, the government identified concerns about local authority capacity to
deliver mandatory BNG. The government has therefore confirmed that they will provide a further
£16.71 million to LPAs before November 2023.

How does BNG apply to different development types?

Small sites

To lessen initial burdens and allow a longer period for developers and local planning authorities to
adapt and prepare for the high volume of minor applications, BNG won’t become mandatory on small
sites until April 2024.

• Small sites are defined as:
  Residential developments where the number of dwellings to be provided is between 1-9 on a
  site area less than 1ha or where the number of dwellings to be provided is not known the site
  area is less than 0.5 hectares.
• Non-residential sites where the floor space created is less than less than 1,000 square meters
  or where the site area is less than 1ha.

A SSM (Small Sites Metric) is a simplified version of the Biodiversity Metric 4.0 and is being specifically
designed for use on small development sites.

The SSM however can’t be used where habitats are not available in the SSM, where priority habitats are within the development site (excluding some hedgerows and arable field margins), where protected species are present on the development site, and where any offsite interventions are required.

The government is planning on simplifying the process to help reduce the burden on small sites, this
includes a more straightforward biodiversity gain plan as well as further training and guidance for
smaller sites.

Phased developments

Phased developments will be required to provide additional biodiversity gain information that sets out
how biodiversity gain will be achieved across the whole site on a phase-by-phase basis.

Approval of the biodiversity gain plan is needed prior to the commencement of each phase.

ROMPs (Reviews of Old Minerals Permissions)

These will be outside the scope of BNG, instead the government will use existing policy to support minerals planning authorities to take an approach based on appropriate ecological outcomes rather than percentage biodiversity targets.

Variations to planning permissions

Where a variation resulted in a change to the post-development biodiversity value, an updated biodiversity plan should be submitted.

This is only applicable to Section 73 applications where the original permission was granted after commencement of the mandatory BNG requirement.

NSIPs (Nationally Significant Infrastructure Projects)

BNG will apply to NSIPs except for when the development is on irreplaceable habitats. This
requirement however will not be mandatory until ‘no later than November 2025’. This will help give
developers time to prepare.

The approach to delivering off-site gains and the process of producing a biodiversity net gain plan will
be consistent with what is required of Town and Country Planning Act developments.

In the NFU response to the consultation, we raised concerns that compulsory acquisition could be used
to deliver BNG.

The government are planning on including guidance or reference to reasonable alternatives developers should explore to deliver net gain before they consider compulsory acquisition of land.

The government will be drafting the biodiversity gain statements and consulting further on their approach to
NSIPs later this year.

Biodiversity Gain Plan

When BNG becomes mandatory, applicable developments will need to submit biodiversity net gain information (in the form of a BNG statement) alongside their planning application.

A biodiversity gain plan is then submitted and must be approved prior to commencement of the
development. The plan must show at least a 10% uplift in the biodiversity value.

The government has confirmed that it will provide further clarity and guidance about the process, what is required in the plan and will also provide a biodiversity gain plan template.

Off-Site Biodiversity Gains

The government will continue to incentivise a preference for on-site gains over off-site gains and will
provide further guidance on what constitutes appropriate off-site biodiversity gains for developments.

Biodiversity gain sites must be secured in an agreement for 30 years as a minimum period. It is likely
that the habitat created will be permanent and the site could not return to its previous land use.

At the end of a biodiversity gain agreement, a landowner should be able to consider other available
incentives to maintain or further enhance the site, this could include delivering further BNG units.

Biodiversity Unit Market

The consultation confirmed that landowners and managers will be able to create or enhance habitat for
the purpose of selling biodiversity units.

The government will not develop a trading platform for biodiversity units, the price of off-site units will be determined by the buyer and seller. It is therefore important for landowners and managers to ensure that the unit price is sufficient to cover the costs of creating or enhancing the habitat, any necessary monitoring, and maintaining it for a at least 30 years.

Biodiversity units will be subject to VAT when they are sold.

Biodiversity Gain Site Register

The government have committed to produce a Biodiversity Gain Site Register, which will be operated
by Natural England.

The register will record allocations of off-site biodiversity gains, this information will be publicly available. The register is expected to be in place when BNG becomes mandatory.

There will be a fee to apply to register biodiversity gain sites, this will cover the costs of the register.

LPAs or responsible bodies are responsible for ensuring that there are agreements in place and that
the biodiversity gains are achievable before the site is registered.

The government will publish guidance on what LPAs and responsible bodies should take into consideration if they are creating legal agreements to secure biodiversity gains.

Habitat Banking

Habitat banks are larger areas of land delivering a biodiversity uplift to the habitat. Typically, these are
large areas (20 plus hectares) or multiple parcels of land. The habitat banks will generate biodiversity
units which can then be purchased by a developer to deliver BNG – the land would need to be secured
in a legal agreement with the developer.

Areas of land created or enhanced after the 30 January 2020 will be eligible to register and sell biodiversity units. Habitat created or enhanced before this date will  need to have the biodiversity value re-baselined from 30 January 2020 using the government's Biodiversity Metric.

Additionality – Protected Sites

Where a development impacts on a protected species and/or protected site, additional activities to
compensate for this impact are required to deliver a further uplift.

These activities can count towards the developments BNG but 10% of the total uplift must not come from the protected species/site activities. The government will be providing guidance on the circumstances in which statutory protected sites can be enhanced for BNG.

Statutory biodiversity credits

Natural England will sell statutory biodiversity credits to developers if the required BNG cannot be
achieved on-site or through the off-site market. The price of biodiversity credits will be set higher than
prices for equivalent biodiversity gain on the market.

The government is aiming to minimise the use of statutory biodiversity credits and hopes to phase them out once the market has matured. Revenue from credit sales will be invested by Natural England into habitat creation and enhancement projects.

Reporting, evaluation, and monitoring

The planning regime will be the principal way of monitoring and enforcing delivery of BNG.

LPAs will be able to set specific and proportionate monitoring requirements. Failure to deliver agreed  environmental enhancements can result in enforcement actions which are at the LPAs discretion.

Conservation Covenants can also be used to enforce action if necessary. Government is looking at what guidance may be needed to support this.

The consultation closed on 5 April 2022.

In its response the NFU called for a specific agricultural exemption to the BNG requirements, as well as highlighting the importance of land managers being able to generate BNG units alongside other environmental services and schemes (stacking and additionality).

To help provide an overview of the consultation and the things that will be of relevance to you, we have put together a sample of our responses to the key questions contained in the consultation below:

Key areas of the consultation

Here are a sample of our responses to the key questions contained in the consultation.

Question 7 – Temporary exemption

Do you agree with our proposal not to exempt temporary applications from the biodiversity net gain requirement?

No.

Due to the varying lifespan of temporary projects, many short-term temporary projects won’t be restored to the same or better condition within 2 years since the loss and would therefore fall into the 30-year BNG requirement, making many short-term temporary projects unviable. For example, planning permission may be granted for 5 years, therefore it would be more appropriate for temporary permission to be accompanied by a requirement for net gain to be secured for the duration of the project plus remedial works. This would allow for fluidity in the market as gains which were associated with temporary permissions could then potentially be made available/enhanced for future projects.

Although temporary permitted development rights (28-day rule) would remain exempt, this may not apply to all temporary developments as many temporary agricultural structures would be in situ for more than 28 days. For example, this could include polytunnels, temporary slurry storage, mobile pig arcs, mobile poultry sheds and temporary housing for farm labour.

»Ê¼Ò»ªÈËcalls for a standalone agricultural development exemption for both area and linear habitats that includes temporary agricultural developments, linear and agricultural developments that fall out of any threshold and sites without permitted development.

Question 10 – Statutory designated site exemption

Do you agree with our proposal not to exempt development within statutory designated sites for nature conservation from the biodiversity gain requirement?

The consultation proposal not to exempt developments within statutory designated sites for nature conservation from mandatory BNG makes sense, but it does mean that where development takes land from a designated site (for example SSSIs) there will be two separate obligations:

(1) to replace the habitat lost under the protected site regime; and
(2) to deliver net gain (BNG requirement).

»Ê¼Ò»ªÈËconsiders that there may be value in reviewing how these processes could work together, to implement a single streamlined and proportionate approach that addresses what is needed for compensatory habitat (based on the habitats condition) and net gain in a single plan.

To ensure agricultural businesses can remain economically viable, farmers need to be able to access development on and around designated sites and not be limited or disadvantaged by the over complexity of BNG requirements. As outlined in Q1, Q7 and Q8 the NFU calls for a standalone agricultural development exemption for agricultural developments, including those which impact on designated sites if they are to be subject to the BNG requirement.

Question 32 – Permanency (30 years plus)

How should the UK Government encourage or enable developers and landowners to secure biodiversity gain sites for longer than the minimum 30-year period?

The Environment Act sets out the minimum period for securing BNG. It is between those contracting parties to agree exact terms and length of the agreement. There is a need for all parties to enter into an agreement fully understanding the long-term consequences of the agreement. In practice, it is likely that many habitats created through BNG will be in place for a
very long-term or permanently due to other legal regimes such as Environmental Impact Assessments and the potential for sites to be designated if they are sufficiently high quality. This will, therefore, be a factor landowners consider when negotiating agreements, and may lead to some landowners seeking longer term obligations.

Where sites are not protected through other legal regimes, consideration should be given to ensuring that there is a market for the benefits to be gained through the maintenance and/or further enhancement of these areas to enable landowners to enter into subsequent agreements which will then secure the continued maintenance and enhancement of these areas going
forwards.

The Environment Act already creates tools to ensure that longer term agreements can be secured where the parties wish to do so. For example, legal agreements can be negotiated by the parties involved. For example, conservation covenants can be negotiated for any duration the parties wish. However, this may introduce another party, the responsible body, to the
decision-making process, potentially making that much more complicated.

If longer term agreements are to be encouraged, it is essential that:

• The legal contracts are fair and proportionate. They need to deal with the length of agreements, disputes, financial arrangements, and termination.
• There is a guarantee that projects can be financed for longer time periods – e.g., by recognising the value in the maintenance of registered biodiversity gains.
• Facilitating the development of environmental markets which enable landowners to sell different benefits from the same area of land where these are compatible - for example landowners should be able to sell carbon offsets, biodiversity off-sets and other nutrient off-sets separately to different buyers on the same area of land. This would maximise the benefits to the landowner and ensure that land is used efficiently to deliver maximum environmental benefit, as well as helping to incentivise the long-term maintenance of the habitat created.

Question 46 – Additionality eligibility

Do you think that a) the non-designated features or areas of statutory protected sites and/or b) local wildlife sites and local nature reserves, should be eligible for enhancement through biodiversity net gain?

Yes (a and b).

The proposal to allow the enhancement of non-designated features of statutory through BNG could maximise the benefits delivered by protected sites, particularly those which are designated for geological rather than biodiversity reasons. The proposed approach should include local wildlife sites and local nature reserves.

The proposal to bring BNG funding into the management of designated sites/local wildlife sites could in turn facilitate their improvement and is therefore welcome. This proposal must allow for stacking of funding/activities as outlined in Q47.

Question 48 – Payment stacking

Do you agree with our proposed approach to combining payments for biodiversity units with other payments for environmental services from the same parcel of land?

Yes.

Allowing landowners and managers to combine payments for Biodiversity units alongside other payments (with different or additional outcomes) would enable land managers to design projects to maximise the environmental gains and incentivise the development of schemes which offer multiple benefits. It also facilitates efficient land use and delivery of public goods as the industry goes through the Agricultural Transition period.

To enable stacking Defra will need to provide more confidence to the market around which activities are additional to publicly funded support. It is possible for one action to deliver multiple environmental outcomes. Will it really be the case the environmental land management schemes could pay for water quality improvements and BNG the biodiversity outcomes?

Further clarity is needed to understand how tax will operate on BNG sites and with BNG credits, especially alongside other environmental activities/payments.

set out its proposals on how biodiversity net gain will be applied to Town and Country Planning Act development, and, at a higher level, Nationally Significant Infrastructure Projects.

The consultation questions were split into three parts, covering several themes:

1. Defining the scope of Biodiversity Net Gain requirement for Town and County Planning Act 1990 development
2. Applying the biodiversity gain objective to different types of development
3. How the mandatory biodiversity net gain requirement will work for Town and Country Planning Act 1990 development