On the 9 September 2021 the Environment Act 2021 became law and includes provisions to establish a set of statutory environmental principles and ensure environmental governance through an environmental watchdog, the Office for Environmental Protection (OEP). It also includes environmental provisions relating to waste, air, water and biodiversity.
Of particular relevance is the introduction of the mandatory requirements for developers to provide biodiversity net gain (BNG) for any new development in England that results in loss or degradation of habitat. Net gain in planning is described as an approach to development that leaves the natural environment in a measurably better state than it was before.
The BNG requirements will apply to any development that requires planning permission to be granted under the Town and Country Planning Act 1990 (TCPA 1990) and must provide a biodiversity net gain of at least 10%.
The Act will mean all planning permissions in England (with limited exemptions) will be granted subject to a new general pre-commencement condition that requires approval of a BNG plan. Development cannot begin until the developer has submitted a BNG plan to the local planning authority and had it approved.
The BNG is met if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage, which is currently 10% (but can be amended by regulations). The biodiversity value for the development is the total of the:
- Post-development biodiversity value of the onsite habitat.
- The biodiversity value of any registered offsite biodiversity gain allocated to the development.
- Biodiversity value of any biodiversity credits purchased for the development.
A developer can purchase statutory biodiversity credits from the Secretary of State to meet the biodiversity gain objective. The sold credits will be equivalent to a specified gain in biodiversity value, which can be included in a biodiversity gain plan.
The 10% BNG requirement is to be brought into effect by secondary legislation at a later date but it is a significant step that will need to be taken account of in applications going forward.
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