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BNG final regulations laid before parliament

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It has been confirmed that Biodiversity Net Gain will become mandatory for new major developments from 12 February 2024, and for small developments from 2 April 2024.

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. 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

BNG will only apply where the planning application was made on or after 12 February 2024. Defra has put transitional arrangements 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.

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.

In November 2023, Defra published the package of secondary legislation in draft to help stakeholders prepare for mandatory BNG (see various posts here). Since then, they  have made a small number of minor changes to the drafting of the legislation. There has been particular interest in the wording of the de-minimis exemption and the biodiversity gain hierarchy, and Defra has made clarifications and changes to reflect stakeholder discussions and intends to publish further information to set those changes out in in more detail.

Links to the finalised regulations will be published on the Defra BNG blog once they are made available.