The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026

The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 represent a crucial refinement of England's Biodiversity Net Gain (BNG) statutory framework. These Regulations specifically amend Part 7A of the Town and Country Planning (Development Management Procedure) (England) Order 2015, focusing on the procedural aspects of biodiversity gain plans. The amendments aim to clarify and streamline requirements concerning the form, timing, additional content, determination, and appeals against refusal or non-determination of these essential plans. For legal professionals, understanding these procedural updates is vital for navigating the increasingly complex landscape of BNG compliance and ensuring the efficient progression of development projects under the Environment Act 2021.

England's commitment to reversing biodiversity decline has been significantly underscored by the introduction of the Biodiversity Net Gain (BNG) regime, a cornerstone of the Environment Act 2021. This ambitious framework mandates that most new developments must achieve a minimum 10% increase in biodiversity value, ensuring that habitats for wildlife are left in a measurably better state than before development commenced. The implementation of BNG has been a phased process, with major developments becoming subject to the requirement from February 2024, and smaller sites following in April 2024.

As the BNG regime matures, ongoing legislative adjustments are necessary to ensure its effective and practical application. The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 emerge as a key instrument in this evolutionary process. These Regulations specifically target the procedural mechanisms governing biodiversity gain plans, which are central to demonstrating compliance with the BNG objective. By refining the administrative requirements, the 2026 Regulations seek to enhance clarity, predictability, and efficiency within the planning system, directly impacting how developers, local planning authorities, and environmental consultants interact with the BNG mandate.

This article will delve into the implications of the 2026 Regulations, examining their role in shaping the submission, assessment, and approval of biodiversity gain plans. It will provide practitioners with an understanding of the statutory context, the specific areas of amendment, and the practical considerations arising from these changes, particularly concerning the form, timing, content, and determination processes for biodiversity gain plans, as well as the provisions for appeals.

The legal foundation for Biodiversity Net Gain in England is primarily established by the Environment Act 2021. This landmark legislation inserted Schedule 7A into the Town and Country Planning Act 1990, creating a statutory framework that makes BNG a mandatory condition for most planning permissions. The core requirement is for developments to achieve a minimum 10% net gain in biodiversity, calculated using a statutory biodiversity metric, and for these gains to be secured and maintained for at least 30 years through planning obligations or conservation covenants.

The operationalisation of BNG within the planning system is further detailed through secondary legislation. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I. 2015/595) plays a critical role in setting out the procedural requirements for planning applications, including those related to BNG. Part 7A of the 2015 Order, specifically, was introduced to govern the submission and determination of biodiversity gain plans, which are pre-commencement conditions requiring approval by the local planning authority before development can begin.

Initial commencement of mandatory BNG for major developments occurred on 12 February 2024, with small sites following on 2 April 2024. Nationally Significant Infrastructure Projects (NSIPs) are expected to be subject to BNG from 2 November 2026, with different rules applying. This phased rollout and the inherent complexity of integrating ecological considerations into the planning process necessitate ongoing legislative fine-tuning. The 2026 Regulations, by specifically amending Part 7A of the 2015 Order, address the practicalities of managing biodiversity gain plans, building upon earlier amendments such as those introduced by The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024.

The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 are designed to refine the procedural framework for biodiversity gain plans, as set out in Part 7A of the Town and Country Planning (Development Management Procedure) (England) Order 2015. The excerpt indicates that these amendments will address the "form, timing, additional content, determination and appeals against refusal, or non-determination, of biodiversity gain plans." This focus is critical, as the biodiversity gain plan is the central document demonstrating how a development will achieve the mandatory 10% net gain.

Practically, amendments to the 'form' and 'additional content' of biodiversity gain plans will likely aim to standardise submissions, ensuring that local planning authorities (LPAs) receive comprehensive and consistent information. This could involve specifying new data requirements, clarifying existing ones, or updating templates to align with evolving best practices in biodiversity assessment and habitat creation. For instance, the existing Article 7 of the 2015 Order already requires specific information with planning applications, including pre-development biodiversity value. The 2026 Regulations may build upon this by detailing the post-development habitat plans, the use of the statutory biodiversity metric, and how on-site, off-site, or statutory biodiversity credits will be integrated.

Changes to the 'timing' of submissions are also significant. Currently, a biodiversity gain plan must be submitted no earlier than the day after planning permission is granted and must be approved before development commences. Any adjustments in the 2026 Regulations could affect project timelines, potentially by introducing earlier submission windows for certain elements or by clarifying deadlines for LPA determinations. Streamlining the 'determination' process, including setting clearer timelines or criteria for approval, would be highly beneficial for developers seeking certainty and avoiding delays. The Regulations' inclusion of provisions for 'appeals against refusal, or non-determination' is particularly important, providing a formal recourse mechanism for developers and ensuring accountability in the decision-making process, akin to existing planning appeal procedures.

The 'transitional provisions' aspect of the 2026 Regulations is crucial for managing the ongoing evolution of the BNG framework. Given that BNG for NSIPs is set to become mandatory from November 2026, and other exemptions and procedural updates are anticipated around July 2026, these provisions will likely address how applications submitted during periods of legislative change are handled. This aims to provide clarity and prevent legal uncertainty for projects that span different regulatory commencement dates, ensuring a smooth transition and consistent application of the BNG requirements across various development types and scales.

While the specific details of the 2026 amendments are contained within the Regulations themselves, their overarching purpose aligns with the broader government objective of embedding nature recovery into the development process. These procedural refinements, alongside other anticipated changes in 2026 such as new area-based exemptions for small sites, amendments to the biodiversity gain hierarchy for minor developments, and recalibration of the spatial multiplier, indicate a continuous effort to make the BNG framework more effective, proportionate, and easier to implement.

The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 underscore the dynamic nature of England's Biodiversity Net Gain regime. By specifically targeting the procedural intricacies surrounding biodiversity gain plans within the Town and Country Planning (Development Management Procedure) (England) Order 2015, these Regulations aim to foster greater clarity, efficiency, and consistency in BNG implementation. For practising attorneys and legal professionals, these amendments necessitate a meticulous understanding of the updated requirements for plan submission, content, and the determination process, as well as the newly clarified appeal mechanisms.

Practitioners must advise clients on the precise form and content now required for biodiversity gain plans, ensuring that submissions are robust and compliant to avoid delays or refusals. Furthermore, an awareness of the transitional provisions will be essential for projects that may straddle different regulatory phases, particularly with the impending application of BNG to Nationally Significant Infrastructure Projects and other anticipated changes in exemptions and spatial multipliers. The ongoing evolution of the BNG framework demands continuous vigilance and proactive engagement with legislative updates to navigate the complexities of environmental planning successfully and contribute to the overarching goal of nature recovery.