Top 5 takeaways from the government’s response to its mandatory BNG consultation

1. Defra’s commitment to a comprehensive mandatory regime that leaves nature in a measurably better state is world-leading.

The regime is world-leading and transformative, incentivising local, more joined up, strategic nature recovery, although a key criticism from some in the sector is that its continued prioritisation for on-site delivery is a missed opportunity to deliver more impactful, landscape-scale outcomes for nature.

We believe that without a clear mandatory requirement, nature will always lose out.

Significant details and guidance are still outstanding, but this is not stopping investment, landowner or developer interest, and LPAs across the country are taking the lead on BNG, which we really welcome.

2. Local Planning Authorities will receive further funding of up to £16.71m to help prepare for mandatory BNG between now and November.

This is great news because LPAs sit right at the heart of the BNG system, performing a crucial role in ensuring BNG brings genuine gains for nature, and they need to be properly resourced to perform their essential role in nature recovery.

However, there is still a lack of guidance for LPAs on how mandatory BNG should interplay with their existing BNG policies, including in the NPPF and local plans so these need to be made clearer.

3. BNG may be stacked with Nutrient Credits and other Agri-Environment Schemes (provided that works are not “double funded”) but may not be stacked with Carbon Credits.

The integrity of offsetting schemes is vital to ensure gains for nature are genuinely delivered. Alignment with the carbon code is welcome and clarity for landowners is essential.

The current published guidance on how BNG may be combined with other statutory schemes will only apply for the next 24 months therefore there needs to be more certainty for landowners in the longer term.

4. What happens after the 30 years are up?

Although we can’t be certain of the policy landscape in 30 years time, there are positive indications from Defra that they are considering incentives for landowners to retain and maintain BNG sites once their legal obligations are up e.g. through tax incentives, or allowing new BNG enhancements.

Detail is still lacking however, so we would welcome a positive and continued discussion from the government around how landowners should be financially rewarded and incentivised for delivering and maintaining ecosystem services and assets that all of society can benefit from.

5. Biodiversity Units can be sold to developers anywhere in England and Developers can buy Biodiversity Units even when Section 106 Agreements/Conservation Covenants for the gain site are not yet in place.

Allowing a national supply of units avoids local distortions in unit pricing, and encourages more land to be brought forward for BNG. The metric incentivises local delivery of BNG, without prohibiting the supply for units from outside an LPA boundary.

This would be beneficial to ensure BNG will not become a bottleneck for planning consents where there are challenges delivering BNG locally. Instead, it would help to unlock sustainable development across the country in an appropriate way that recognises the importance of local delivery but without constraining the opportunity to have good quality BNG delivery elsewhere when local is not possible.

Policy would allow flexibility for landowners and developers to buy/sell units without a Section 106 Agreement or Conservation Covenant (“legal agreement”) in place, as long as that legal agreement is in place by the time the Biodiversity Gain Plan for the developer’s development is approved by the LPA (after planning permission is granted).

Further clarity is needed for LPAs (and responsible bodies) to understand what should be considered prior to securing off site biodiversity gains through a legal agreement (s106 or conservation covenant). There is also still a lack of published information about the criteria for becoming a ‘responsible body’, which means the heavy burden lays with LPAs to manage biodiversity gain sites through section 106 Agreements.

It is also still unclear as to whether a developer will need to demonstrate how they have applied the mitigation hierarchy and exhausted all possible options locally before seeking BNG options further afield (and indeed resorting to the government’s Statutory Credits).