Changes to the Environment Act 2021 imminent: Biodiversity Net Gain

27th September 2023

The Environment Act 2021 will require developments to achieve a minimum 10% Biodiversity Net Gain (BNG). The new regulations were expected to come into effect in November 2023, with mandatory BNG for small sites commencing from April 2024. They have been delayed but many local planning authorities have adapted planning policies to reflect the new law.

This means that for property undergoing development, developers will need to demonstrate their ability to deliver measurable improvements in biodiversity by creating or enhancing habitats.

How does this affect you?

As with all new legislation and rule changes, we will closely monitor developments and provide advice to our clients accordingly. The new regulations will create both obligations and opportunities that will impact the way land developments are planned and managed. We are leaders in this area of law and are already advising developers, landowners, and local authorities.

If you are a developer?

A new statutory requirement will mandate that all planning permissions granted in England (with a few exceptions), except for small sites, must deliver a minimum of 10% BNG.

BNG will be measured using Natural England’s biodiversity metric, and habitats will need to be secured for at least 30 years. Planning conditions will require developers to obtain approval from the local planning authority for a Biodiversity Net Gain plan.

BNG can be achieved on-site, off-site, or through a combination of on-site and off-site measures, or as a last resort through statutory biodiversity credits (purchased from the Government). Natural England will sell statutory biodiversity credits on behalf of the Secretary of State at a price set by Defra, which is expected to be expensive.

Our team can provide advice on the legal mechanisms to secure and evidence BNG, including planning conditions, planning obligations secured in an S106 deed, or conservation covenant for on or off-site BNG provision, the purchase of BNG units from landowners, or BNG credits from the government.

If you are a landowner?

BNG will create opportunities for landowners when developers seek to provide off-site BNG, potentially resulting in a new income stream.

BNG offers an opportunity to enter a market where ‘biodiversity units’ are bought and sold. Creating or enhancing habitats on your land generates these biodiversity units, which you can, in turn, sell to developers.

Our team can advise landowners on the best options, including those to maximise efficiency and income when selling off-site biodiversity units out of land holdings, how to participate in the national register of BNG units, and entering into legally binding conservation covenants or planning obligations.

If you are a local authority?

If you are a local authority, you can use your own land to deliver BNG, but there are rules preventing local authorities from offering their sites in preferences to others.

There are certain conditions that our team can discuss with you. Local authorities are also permitted to generate revenue from their BNG units, which can be reinvested into local communities to aid in accomplishing local authority environmental enhancement policies and objectives. Consequently, the opportunities are both obvious and exciting, especially where a local authority may be able to use low-value land for this purpose.

If you are a consultant?

You may be required to comply with the new BNG requirements and provide indemnities. It is important that you understand the implications of the new framework, and any appointments and warranties should be drafted appropriately.

Our experience in planning, environmental, real estate, and commercial law, means that we can offer you the perfect combination of advice necessary to navigate the complexities of biodiversity net gain.

If you’re a developer, landowner, land agent, consultant, or local authority and want to discuss how the new BNG rules affect you, we’re here to help get in touch

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