DEFRA confirms 12 February start for biodiversity net gain on major development

Biodiversity net gain (BNG) will go live from 12 February 2024, the Land Use Policy Team at the Department for Environment, Food and Rural Affairs (Defra) has confirmed.

In a blog, the team said: “From this date major development (unless otherwise exempt) will have to deliver net gains for biodiversity leading to positive outcomes for nature, better places for local communities and more consistent and transparent requirements for developers.”

From 12 February 2024, BNG will be mandatory for new planning applications for major development made under the Town and Country Planning Act (TCPA) 1990, subject to the confirmed exemptions. Major development includes residential developments with 10 or more dwellings, or where the site area is greater than 0.5 hectares.

BNG for small sites will have an extended transition period and will apply from 2 April 2024, Defra said. Small site development includes:

• Residential development where the number of dwellings is between 1 and 9, or if unknown the site area is less than 0.5 hectares
• Commercial development where floor space created is less than 1,000 square metres or the total site area is less than 1 hectare

The Land Use Policy Team revealed that they have prioritised the introduction of BNG for planning applications. From 12 February, BNG will apply to new applications for planning permission, except for applications for retrospective permission, the exemptions and transitional arrangements.

Applications made under any other route, for example deemed permissions under section 90 TCPA 1990 or permission granted by a Local Development Order, will not be subject to mandatory BNG yet.

Further regulations will be required to modify the procedure for these other routes to planning permission, the team said, adding that they would release further information on this in due course.

“Developers may still deliver voluntary BNG on these developments under existing planning policy,” they stressed.

BNG will only apply where the planning application was made on or after 12 February. Transitional arrangements have been put in place in the main BNG commencement regulations, to ensure that BNG will not apply to a planning permission if the planning application was made before this date.

“These transitional arrangements also mean that if you received planning permission before 12 February (and that permission wasn’t subject to BNG), if you then apply via section 73 to vary a planning condition on that permission, the new permission granted (under section 73) would also be exempt from BNG,” the Land Use Policy Team said.

If a planning application for a small site development was made during the small sites extended transition period, between 12 February and 2 April 2024, and subsequently a section 73 variation was granted after 2 April, the same transitional arrangements will apply and BNG will not be required on any subsequent section 73 variations.

Defra said it would publish further blogs setting out the “small number of minor changes” to the drafting of secondary legislation it published in November 2023.

“We know there has been particular interest in the wording of the de-minimis exemption and the biodiversity gain hierarchy, and we have made clarifications and changes to reflect the discussions we have had with interested stakeholders.”