Delay to the implementation of Biodiversity Net Gain

The Government has delayed the implementation of Biodiversity Net Gain, which was due to become a mandatory part of the planning system in England in November.

Under the changes announced at the end of September, developers in England will now be required to deliver 10% Biodiversity Net Gain (BNG) from January 2024 when building new housing, industrial or commercial developments. For smaller sites, BNG will apply from April 2024 and for Nationally Significant Infrastructure Projects the requirement to deliver 10% BNG remains 2025.

The new measures are being introduced to help halt the decline of species abundance by 2030 and to ensure developers agree to a plan for a site which delivers biodiversity net gain, either on or off the site, set at a minimum gain of 10%.

By the end of November, the Government has now said it will publish all guidance and the regulations relating to BNG which will include:

• The statutory biodiversity metric, critical for calculating the correct biodiversity gain.

• The draft Biodiversity Gain Plan template which will help developers prepare for what they will need to complete during the planning application stages.

• The Habitat Management and Monitoring Plan template which will set out how the improved significant on-site and off-site habitats will be managed for the long term.

• A package of BNG guidance that sets out further advice for landowners, developers and local planning authorities around their role and responsibilities in delivering mandatory BNG.

Under the scheme, different habitats and wildlife affected by development will be given a biodiversity value. Habitats such as hedgerows and hay meadows which support many species will have a higher unit value compared to those habits which are less species rich such as cropland or derelict land.

Landowners will benefit from the scheme as they will have the opportunity to sell both biodiversity units and nutrient credits from the same intervention on their land in the future, such as the creation of a new wetland or woodland.

Environmental Land Management grants may also provide an uplift in value, so a landowner creating a modified grassland for a grant payment could use the baseline from this and improve the habitat condition beyond the requirement to create biodiversity units for sale on the BNG market.

Natural England will be the operator of the mandatory biodiversity gain site register and all the information will be in the public domain, although it won’t provide a long-term marketplace for the credits.

The Government published details, earlier this summer, of the indicative statutory biodiversity credit

Gullands for developers to buy, starting at £42k per unit and rising to £650k for lakes.

Habitats which have been created after 30 January 2020 are eligible for the registration and sale of units and those created before are not eligible but will need to be re-baselined to allow for sales in the future.

A habitat ‘bank’ on a land holding can be split depending on the number of credits needed for each development and each will have a separate 30-year agreement with developers.

The current issue for landowners and developers alike is the uncertainty that the government’s delay in publishing the regulations and guidance has caused. Once again, we will have to wait and see what is finally announced and both landowners and developers will no doubt watch this space with interest.

If you would like to talk about any legal issues relating to your land or development, please get in touch with our commercial team today. We will be pleased to assist.

Catherine Lloyd, Partner: c.lloyd@gullands.com or Marianne Webb, Partner: m.webb@gullands.com www.gullands.com