BNG has become one of those three letter acronym subjects like CIL and ACVs which has become its world of domestic planning law complexity. (EDPs, EORs etc: “Hold my beer…”?)
In many instances, I’ve been left wondering whether the additional bureaucracy and required specialist input (often legal as well as ecological), particularly in relation to the development of smaller sites, was ever anticipated by those preparing the legislation (if not, why not?) and whether (in relation to those smaller sites) the gain has indeed been worth the pain.
In my 31 May 2025 blog post Small Changes I mentioned consultation that the government was undertaking on simplifying BNG requirements.
We now have the government’s response (15 April 2026) to that consultation process.
Helpful changes are on the way, some by the end of July, particularly:
- A new exemption for sites whether the planning permission area is no more than 0.2 hectares (and in the light of that removal of the current self-build and custom-build exemptions)
- A new exemption where development is wholly or primarily for conserving or enhancing biodiversity
- A new exemption for temporary planning permissions of no more than five years
- A new exemption for development that enhances parks, public gardens or playing fields where no onsite priority habitats are affected and where (in the case of playing fields) development linked to wider schemes or pitches enclosed within a sports stadium is excluded
- Changes to biodiversity gain hierarchy, spatial risk multiplier and approach to open mosaic habitats.
In terms of transitional arrangements:
“Guidance will also be provided on transitional arrangements for local authorities and developers. This will cover how to treat applications in the interim period while changes are being implemented … Until changes take effect, the current BNG requirement remains in place and developers should continue to follow existing guidance and legislation when delivering BNG. Planning applications that have been granted subject to the biodiversity gain condition will be required to discharge this condition through the submission and approval of a biodiversity gain plan before development can commence.”
Have you noticed that these three letter acronym planning law areas each soon attract their own specialists, devotees even? I’m nodding admiringly here in the direction of my Town Legal colleagues David Mathias and Tanika Zeidler. They jointly wrote a more detailed article The BNG Consultation Response: What the Feedback Shows and Future Changes Inbound last week. Please do read if you need to know more.
One of the areas where BNG rears its head in my practice is how BNG commitments are secured in practice by local planning authorities, whether by condition, in the case of on-site BNG (to the extent to which anything is required, given the statutory condition), sometimes with section 106 agreement obligations as well, and by section 106 agreement or conservation covenant in the case of off-site BNG. The PAS BNG legal agreement and planning condition templates, prepared by Dentons, are helpful but there is still much inconsistency and gold-plating out there.
Tanika drew my attention this week to an inspector’s decision letter dated 14 April 2026 relating to a proposal for a solar fam in Rutland where the main issue was whether the proposal made adequate provision for BNG. The BNG was to be on-site but the local planning authority argued that a section 106 agreement was required, simply to impose a requirement for the appellant to make a financial contribution towards its costs of monitoring compliance. The inspector agreed with the appellant that this was not necessary. The inspector did “not consider that the outlined onsite enhancement would be especially extensive or complex” and noted that in any event under the Habitat Management and Monitoring Plan which would be required by way of condition the appellant would likely have to provide regular monitoring reports over the 30 year period. Welcome common sense. The last thing we need is section 106 agreements simply to secure monitoring contributions where the cost of the paperwork and certainly the cost of the delay thereby arising is likely to exceed the quantum of the contribution!
Simon Ricketts, 26 April 2026
Personal views, et cetera
SIMONICITY 