January 22nd, 2024 by James Goudie KC

In relation to biodiversity gain in England, the Environment Act 2021 ( the 2021 Act ) inserted Section 90A of and Schedule 7A to TCPA 1990. Subject to exceptions, every planning permission is deemed to be granted subject to general condition. The biodiversity gain requirement is that the biodiversity value attributable to the development exceeds the pre-development diversity value by at least the  statutorily specified percentage. Biodiversity value means value calculated in accordance with a metric.

Three sets of Regulations have been made under the 2021 Act as part of a package in relation to biodiversity gain. Exemption Regulations, S.I. 2024/47, prescribe categories of planning permission to which the requirement that would otherwise be imposed as a general condition do not apply. There are small development, de minimis and householder exemptions. There is also exemption for development “ forming part of, or ancillary to “ the high speed railway network, development undertaken “ solely or mainly “ for the “ purpose “ of fulfilling the condition which applies to another development, and self-build and custom build.

Irreplaceable Habitat Regulations, S.I. 2024/48, also in force from 12 February 2024, define “ irreplaceable habitat “ for the purpose of securing that a biodiversity gain objective is met, and disapply the requirement to increase the biodiversity value of developments sites. Alternative arrangements must be made to minimise the adverse effect of the development on the biodiversity of the habitat where that habitat is deemed “ irreplaceable “. The Consequential Amendments Regulations, S.I.2024/49, relate to biodiversity gain plans.

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