New DEFRA guidance on Biodiversity Net Gain

The Department for Environment, Food and Rural Affairs (Defra) published guidance for England entitled “What you can count towards a development’s biodiversity net gain (BNG).”

Biodiversity net gain (BNG) aims to make a new development’s impact on the environment positive by delivering improvements through habitat creation or enhancement after avoiding or mitigating harm as far as possible. Mandatory BNG will apply to all new planning applications under the town and country planning regime in England that result in loss or degradation of habitat from November 2023 (with some exceptions).

The new Defra guidance says that if a developer is creating or enhancing habitat as part of its development, this may count towards its BNG. This will apply even if the habitat required for the development is to:

• Comply with a statutory obligation or policy, for example, green infrastructure, environmental impact assessment (EIA) compensation or sustainable drainage.
• Provide river basin management plan (RBMP) mitigation and enhancement measures.
• Provide mitigation or compensation for protected species or sites, for example, nutrient mitigation.

Off-site mitigation and compensation for protected sites and species may also count towards BNG. But at least 10% of BNG should be done through other activities, for example, on-site habitat creation and enhancement. Off-site units must be legally secure for at least 30 years, and registered, before they can count towards BNG. Habitat creation or enhancements do not count towards BNG if required for restocking conditions relating to a tree-felling licence, marine licensing, or remediation under the environmental damage regime.

In February 2023, Defra published the government response to its 2022 consultation on BNG regulations and implementation together with some guidance (these can be read here – https://www.gov.uk/government/consultations/consultation-on-biodiversity-net-gain-regulations-and-implementation and here – https://www.gov.uk/government/news/new-developments-to-deliver-for-people-and-nature). Defra has not yet published the draft regulations although it has indicated that it will publish more guidance.

For more information contact our Commercial Property Team