BNG and its impact upon the Planning System

Environment Bill (2020)

The Environment Bill (2020) lays down far clearer biodiversity requirements than the existing NPPF. This will remove subjective judgement, strengthen the hand of LPA Ecologists and in principle at least, standardise requirements and level the playing field.

In Planning terms, the Biodiversity Net Gain (BNG) principle establishes the simple objective of achieving a (measurable) 10% creation/enhancement of habitats post-development than was present pre-development. BNG, can be thought of as creating/enhancing habitats which provide potential homes for biodiversity. It is not species focused, but habitat focused, and follows the maxim ‘build it and they will come’. 

BNG is highly likely to become mandatory for nearly all new developments if and when the Environment Bill passes through Parliament. Covid-19 and Brexit has slowed down the Bills progress, but it seems likely that the Bill will become law towards the end of
2021. Whether it passes in its current form is something of an unknown and it remains to be seen what if any amendments are made to it. I think it wise to assume the 10% BNG requirement will remain an essential part of the Bill and this should be factored in when anyone is negotiating to purchase land.

Once the Bill has passed, it is probable that there will be a two-year period of adjustment to permit developers / landowners / LPAs to become acquainted with the process before it becomes legally enforceable. The Bill will almost certainly have an impact upon land prices, as the density of housing on any given site will have to be reduced to provide on-site BNG / Off-site BNG or factor in the cost of compensation payments. The bottom line is that building homes will become more expensive as a result of BNG. 

Also lacking in many cases maybe a legal basis by which to enforce BNG requirements on developers and no doubt Appeals / Enquiries, or Judicial Reviews will establish the legality of some current LPA ‘requirements.’ 

BNG for Planning Applicants. 

The Environment Bill (with regard to BNG) has a number of clauses, including: Distinctions between the BNG requirements for Major and Minor Developments, with the requirements for Minor Developments being less onerous and currently not proscribed (although this is likely to occur at some stage), this enables local authorities a little latitude in their requirements. 

Unfortunately, some of the LPAs who have jumped the gun and are now insisting on BNG as part of their planning requirements are not consistent in interpreting what comprises a Minor Development. For instance, Cornwall, along with most LPAs consider nine (9) or fewer residential units and less than .5 hectares in extent to be Minor, and thus have a greater degree of flexibility in determining BNG requirements, whilst other LPAs have started to request BNG for single structures and / or developments in excess of 0.1 hectares.

Major developments are generally considered those in excess of 9 units or impacting a site in excess of .5 hectares and such developments must have their BNG quantified by the most up to date Defra Metric – Commercial developments have their own
definitions of Major / Minor.

Clarifying the distinctions between Minor and Major applications within your LPA is a useful first step and I would urge you to do so ASAP.

Currently, there are a number of metrics which all produce different results for the same inputs – Once the Environment Bill becomes Law, only the Defra Metric can be used, as this will ensure conformity and fairness. 

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