It’s been just over a year since the seeds were sown and the Biodiversity Net Gain (“BNG”) regime enacted by the Environmental Act 2021 came into force for major developments on 12 February 2024. After years of ‘on site’ bio-diversity schemes being implemented with varying degrees of success, the Government hopes that the BNG regime will provide the groundwork from which the seeds of success can grow and habitats for wildlife are left in a measurably better state than they were before. 

What is the BNG regime?

To recap, the BNG regime in England is mandatory pursuant to Schedule 7A of the Town and Country Planning Act 1990 (as inserted by Schedule 14 of the Environment Act 2021). Consequently, developers must deliver a BNG of at least 10%. BNG is considered by the local planning authority as part of the planning application process. Consequently, the ‘biodiversity metric’ or ‘small sites metric’ spreadsheet must be submitted with the planning application, together with a baseline assessment of the site and other ancillary documents, including plans. Once the planning application is approved and planning permission is granted, then subject to limited exemptions a planning condition will be attached to the planning permission. This will require the submission of a ‘biodiversity gain plan’ and other associated documents, to be approved by the local planning authority, describing how the 10% uplift in biodiversity will be achieved. So, in the year since its inception, have there been any green shoots?

Green shoots of success? 

• Needless to say, that, as is the case for any new regime, this first year has been one of trial and error for the industry and Government. The BNG regime introduced a standardised new legal requirement, but initial guidance was vague and the interpretation of this and the statutory requirements led to confusion and a multitude of interpretations: for example, ‘offsite biodiversity units need to be purchased from the local planning authority area within which the development is situated’, false, or ‘Natural England is a ‘responsible body’ but can’t enter into a ‘conservation covenant’’, true – to date, the number of responsible bodies able to enter into conservation covenants stands at 24. Of course, this can be forgiven, and was recognised by Government and Natural England, both of whom have made great efforts to update guidance where helpful and provide much needed clarity.
   
• Notwithstanding initial stumbling blocks, the BNG regime is clearly a paradigm shift in the delivery of development in England, and how our natural environment is preserved and nourished. Where previously, nature and the delivery of ‘on-site’ green amenity space was largely an afterthought for the industry, it is now front and centre and in the context of the BNG regime, the earlier in the process the provision of the natural environment and wildlife is considered in the process (ideally, as early as site selection and initial design), the easier it is to meet the mandatory 10% BNG requirement. Equally important, is the season in which a baseline assessment of the site is undertaken, with the winter months creating greater difficulties noting that biodiversity is more limited.
   
• From an ecological perspective, it’s far too early to tell. Man-made habitats take time to establish and only a handful of developments have reached the stage in the development process of needing to provide new onsite or offsite (usually adjoining land in the same ownership) habitats,  or although there are more that have obtained offsite biodiversity units (being biodiversity gains delivered on land outside of the red-line boundary of a development). The early signs are, however, encouraging. Over 1,000 hectares of land has been registered for the BNG regime to provide offsite units to developers who are unable to make ‘on-site’ provision, noting that ‘on-site’ provision remains the primary requirement.

What’s next for BNG?

Of course, questions remain to be answered. It’s clear that our planet will continue to change and that our weather systems and seasons will become increasingly polarised. The purpose of the BNG regime is to secure meaningful gains over a significant period (30 years) and therefore consideration will need to be given to the monitoring of these man-made habitats and their climate-resilience. Pleasingly, work is already underway and technical experts across the industry are coming together to consider the use of existing technology, such as using satellite imagery to monitor and track BNG sites. 

In short, there are many positive takeaways from the first year of BNG but there have been some challenges too. As one might expect with such a significant and ground-breaking piece of legislation time has been needed for the industry to find its feet, but it’s clear that the momentum is in the right direction.