Schedule 14: Biodiversity gain as condition of planning permission Part 1: Biodiversity gain condition Part 1: Overview and interpretation
Paragraph 1 of Schedule 7A gives effect to paragraphs 2 to 11, which set out details of a new general condition to all planning permissions granted in England, subject to exceptions. The condition requires a biodiversity gain plan to be submitted and approved by the planning authority before development can lawfully commence. The biodiversity gain plan should contain an assessment of the value of natural habitats before development and after development, and ensure that at least a 10% net gain is achieved between the earlier and later values. The Town and Country Planning Act 1990 already allows for planning permission to be granted subject to condition(s). This "general condition" for biodiversity gain, which is mandatory for all planning permissions, is novel. Because the condition is deemed to have been granted, it exists in statute prior to the grant of planning permission. It may therefore be met at the time of granting planning permission where the planning authority also approves a biodiversity gain plan, meaning that the biodiversity net gain plan may not need to be submitted and approved in a separate process after planning permission has been granted. This could be used for straightforward planning applications where the relevant information is available upfront. The general condition will not apply to all development in all scenarios. Part 1 includes a power to detail these exceptions in secondary legislation.
	Paragraph 2 sets out the biodiversity gain objective and how it must be met. The objective is that the biodiversity value, expressed in biodiversity units, attributable to the development exceeds that which existed before development by at least 10%. Sub-paragraph (4) gives the Secretary of State a power to vary the percentage gain required.
	Paragraph 3 identifies the biodiversity metric as the approach which will be used to calculate the relative biodiversity value of any habitat. The metric uses habitats as a proxy for biodiversity value, which it measures and expresses in terms of "biodiversity units".
	Paragraph 4 makes provision for the Secretary of State to publish the biodiversity metric, the tool which is used to measure the relative biodiversity value of habitats as relevant to this schedule. Sub-paragraphs (3) and (5) give the Secretary of State the power to update the biodiversity metric, and set out any arrangements for transition when the metric is updated so that developers and planning authorities are clear what is required where, for example, a planning application is under consideration on the date the updated version of the metric comes into effect. Updates to the metric will allow technical improvements, reflecting improved ecological understanding and further evaluation of the metric’s application in practice, to the metric to be incorporated into the approach. Updates will be infrequent to avoid creating unnecessary uncertainty for the planning system. The intention is to publish a timeline of planned updates. The provision also enables the Secretary of State to make transitional provision where the metric is revised and republished. Sub-paragraph (6) requires the biodiversity metric published for mandatory biodiversity net gain, which will be used for measuring the biodiversity value of land and enhancements, to be laid before Parliament. This will ensure that the document is clearly published and is available for scrutiny.
	Paragraph 5 defines the date on which the pre-development biodiversity value of land should be taken to be measured. Sub-paragraph (3) enables a developer and a local planning authority to agree another date where more appropriate than the default set out in sub-paragraph (2). Sub-paragraph (4) makes provision for circumstances in which the planning authority is aware that there has been degradation of habitats in advance of development.
	Paragraph 6 sets out that the pre-development biodiversity value of on-site habitats is to be taken as the value before certain activities took place. These activities must have been carried out without planning permission, or without an alternative permission specified by the Secretary of State in regulations, on or after 15 October 2019. The activities must also have reduced the biodiversity value of habitats on the site below what it would otherwise have been at the time of planning application or planning permission.
	Paragraph 7 defines the pre-development biodiversity value in the event that a site registered as a "biodiversity gain site" is developed. It sets out that the pre-development value of the land should be taken to be the enhanced value of the registered site, regardless of whether or not the registered biodiversity enhancement has in fact been delivered successfully. This will mean that the development of a registered compensation site, whilst unlikely and undesirable, should not undermine the overall biodiversity gain outcome.
	Paragraph 8 defines the post-development biodiversity value of habitat on the development site as the projected value of habitats on the development site. The value needs to be projected because a planning authority will need to use this figure before development starts to determine whether the development will achieve the net gain objective. In practice, the post-development biodiversity value of habitats on the development site will be determined by applying the metric to the developer’s plan for the development site as detailed in the biodiversity gain plan.
	Paragraph 9 stipulates that significant increases in onsite biodiversity value can only be considered part of the post-development biodiversity value if they are secured through a suitable mechanism and will be maintained for at least 30 years after the completion of development. This paragraph also allows the Secretary of State to change the minimum time for which biodiversity gains must be secured. This minimum time applies to on-site biodiversity value increases which are considered significant and therefore secured (through a planning obligation, conservation covenant or planning condition). This may not be changed to a period of less than 30 years, which is the initial duration specified in the Act’s provisions.
	Paragraph 10 defines what can be counted towards "registered offsite biodiversity gain" in relation to a development. This relates to gain achieved on land other than the development site. Where a developer makes an agreement with a third party to do so, or enters into an agreement to do so themselves, this gain can be allocated to the development to be counted towards meeting the biodiversity objective. The biodiversity gain and its allocation to a development must be recorded on the biodiversity gains site register.
	Paragraph 11 makes reference to biodiversity credits, as described in section 101 of the current Act.
	Paragraph 12 defines the terms "developer", "onsite habitat" and "planning authority" as they are applied in the new Schedule 7A. Sub-paragraph (2) states that references to planning permission should be taken to include deemed planning permission, which is granted by government departments to certain development. This includes development approved under the Electricity Act 1989 and the Transport and Works Act 1989.