On 21 February 2023, Government published its much-anticipated response to its consultation on biodiversity net gain (BNG) regulations and implementation from January 2022 - Government response and summary of responses - GOV.UK (www.gov.uk) (“the Response”).  This was accompanied by refreshed government guidance to developers and local authorities - Biodiversity net gain - GOV.UK (www.gov.uk) (“the Guidance”).

Whilst there is a lot of detail to grapple with, our immediate top five key takeaways from this are:

1. Welcomed confirmation that credit “stacking” is supported by Government

The delivery of more than one “nature market” (i.e. biodiversity units and nutrient credits) on the same parcel of land is referred to as “stacking”. Until the release of the Response, there was no official governmental stance on the topic, leading to opposing views in industry as to whether multiple credits can be sold separately from the same activity on a piece of land. The Response and Guidance now confirms that the sale of both biodiversity units and nutrient credits from the same nature-based intervention is acceptable and this will be good news for landowners and organisations carrying out habitat creation or enhancements. This is supported by Guidance on combining environmental payments: BNG and nutrient mitigation published on the same day as the Response.

2. Proposed extension to the list of BNG exemptions

Criticism expressed by industry in respect of the limited BNG exemptions has not been acted upon in whole by Government, and the Response confirms that previously developed land, change of use applications and development in Conservation Areas excluded from permitted development rights, will not be specifically exempt. However, Government does intend to use regulations to make exemptions for development impacting habitat of an area below a ‘de minimis’ threshold of 25 sqm, or 5m for linear habitats, housebuilder applications, biodiversity gain sites themselves and small scale self-build and custom housing (in addition to permitted development and the urgent crown development already exempted under the Environment Act 2021).

3. Good news for the development of ‘small sites’

It will be welcomed that Government will be providing a small sites BNG metric for development which meets size and in the absence of priority habitats criteria, with a delay to the imposition of biodiversity net gain for those smaller sites until April 2024.  ‘Small sites’, for the purpose of BNG exemption for residential development, will include less than 1-hectare sites providing 1-9 units or, where the number of dwellings is not known, a site area of less than 0.5 hectares. Small sites for non-residential development will be where less than 1,000 sqm of floorspace will be created, or where the site is less than 0.5 hectares.

4. Ongoing lack of guidance around the management of BNG matters across different types of development

Whilst the level of clarity in respect of outline and phased development was criticised during consultation, that detail is still outstanding – the position remains that BNG should be considered at outline stage, but given that fundamental details of a prospective development which could have BNG implications for the wider site may not be identifiable until reserved matters, the lack of guidance on this point will be a cause for concern for all, particularly when there is so little time left before BNG becomes mandatory.  

5. LPA funding / resourcing

LPAs will undoubtably welcome additional funding of £16.71 million, in response to concerns raised around capacity to assist with the delivery of mandatory BNG. However, the Response/Guidance fails to provide direction on how LPAs will practically be able to enforce BNG breaches solely utilising enforcement powers, particularly when BNG is secured by Conservation Covenant ‘off-site’.

Further detailed guidance is likely to be published in due course, including a template BNG plan and further detail on the interaction between the legal requirements and those in planning policy. The Guidance will need to be borne in mind when the proposed changes to the NPPF are considered but, overall, the releases this week are a step forward in terms of filling out some of the missing detail in relation to BNG as we look towards the November 2023 deadline.