“As flagged in our September 2023 article, the Government has now published the draft Biodiversity Net Gain (BNG) regulations here, here, here and here and planning practice guidance. BNG will become mandatory, and the planning practice guidance will come into force after the regulations have passed through parliament. Although there is still no specified date for the regulations to come into force, the commencement date is still expected to be by the end of January 2024 for major applications and the end of April for minor applications”, advises Henry Buckpitt of Acorn Rural Property Consultants.
“The guidance confirms that BNG will not apply to planning applications that are submitted before the commencement date. Applicants should, however, be aware that applications that are submitted before the commencement date but are unable to be validated because, for example, they are missing a procedural requirement, will only count as having been made when they have been validated”, says Buckpitt.
“As currently drafted, the guidance states that the regulations will not apply to retrospective planning applications. If that is the case, it would provide a potential loophole by which it may be possible for developers to avoid compliance with BNG requirements. In our view, it is more likely that that is an error and that the draft guidance is attempting to explain that there will be an exemption for planning applications that amend a previously planning consent that was granted prior to the commencement date of the BNG regulations”, comments Buckpitt and adds that, in addition to this exemption, the draft regulations include exemptions for householder applications, self-build applications and developments that fall below a de minimis threshold.
“The draft guidance also provides further details of how the biodiversity gain site register (BGSR) to be maintained by Natural England will operate and the costs associated with registering a site. It confirms that, for BNG units to be eligible for sale, the site where they are located will have to be on the BGSR”, explains Buckpitt.
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