The Biodiversity Gain Modification Regulations – what has changed?

Draft biodiversity net gain (BNG) regulations were published in November and, in readiness of 12 February 2024 (when mandatory BNG will come into effect for most planning applications), six statutory instruments have now come into force. 

Which BNG regulations have been amended?

The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024, (which provide for certain applications to be accompanied by BNG information and amend primary legislation in light of BNG requirements) were made in a slightly amended form to their draft. We highlight the key changes below.

• The regulations provide clarity on phasing - confirming that a condition will be imposed such that no phase of development is to be begun unless a biodiversity gain plan for that phase has been submitted and approved.
• Clarity is also provided in relation to s.73 development – a condition will be imposed confirming that no further development of a phase which has begun may be carried out unless a biodiversity gain plan has been submitted and approved. 
• There is no requirement to submit a “strategy for meeting the biodiversity gain objective” (as had been envisaged in the draft regulations) but instead the regulations clarify what must be considered when determining if the biodiversity gain objective is met.
• If activities are carried out on or after 30 January 2020 (other than with planning permission or as specified by regulations) which have resulted in a lower biodiversity value (BV) for the onsite habitat than otherwise would have been the case, pre-development BV is taken to be that immediately before the carrying out of the activities, and the regulations detail that applications must be accompanied by a completed biodiversity metric calculation showing the BV of the onsite habitat on the date immediately before any such activities.
• The Government has effectively strengthened the mitigation hierarchy. Habitats are given a distinctiveness score in the BNG metric and the finalised regulations include an amended biodiversity gain hierarchy, such that there is now a specific requirement which applies where there is a distinctiveness score of four or more (rather than a score of six, per the draft) to avoid adverse effects or, if effects cannot be avoided, mitigate (with the requirement to compensate for adverse effects applying in all scenarios). This means that avoidance/mitigation effects now also apply to medium distinctiveness onsite habitats (and not just high distinctiveness habitats). 
• There is a requirement for authorities, on any refusal of a biodiversity gain plan, to state clearly and precisely their reasoning for such a determination.

Which regulations remain unamended since their draft forms?

No changes were made to:

• The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 which define what is “irreplaceable habitat” for the purposes of BNG; 
• The Biodiversity Gain Requirements (Exemptions) Regulations 2024 which identify the types of planning applications to which mandatory BNG does not apply; 
• The Biodiversity Gain Site Register Regulations 2024 which require Natural England to establish a biodiversity gain site register; 
• The Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024 which impose penalties for false/misleading information submitted in connection with an application to register a site on the biodiversity gain register; or 
• The Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024 which set out how to determine the relevant local planning authority for BNG purposes and includes provisions relating to the gain plan.

Therefore there’s no need to review these regulations afresh if you are already familiar with their draft forms (as summarised by our previous article). 

What next?

We still await an updated BNG Planning Practice Guidance, as well as an updated planning application form and a template biodiversity gain plan for phased development.