To be sure that Biodiversity Net Gain (BNG) maximises ecological benefits while remaining proportionate, practical, and cost-effective, a range of development types have been given exemption from statutory net gain requirements. These include permitted developments, developments below the minimum threshold for impacting habitats (de minimis) and self/custom builds.
As BNG legislation becomes embedded in the planning process, early indications are that many more applicants have been claiming exemption than expected. In fact, many Local Planning Authorities (LPAs) have told us that it’s likely some exemptions are being claimed inappropriately.
Why should councils check BNG exemption claims?
Central government has put LPAs in charge of ensuring exemption claims are valid. It’s easy to see this as yet another job for councils to carry out, but it is in LPAs’ interests to do this well.
Effective delivery of BNG brings a range of benefits to local authorities that may be lost if exemptions are claimed inappropriately. These include generating local biodiversity enhancements; fulfilling the statutory Biodiversity Duty; contributing to local and national nature recovery networks; enhancing designated and protected sites; creating climate-resilient landscapes, towns and cities; establishing natural flood mitigation; bringing green travel opportunities and improving health and well-being.
In addition, developments being inappropriately exempted from BNG may cause local authorities to lose important BNG-related income streams. These include charges for pre-application BNG advice, for assessing BNG Plans, and for BNG monitoring fees. Ensuring these are charged where appropriate means that LPAs can achieve a “critical mass” of BNG funding to allow the policy to be effectively implemented, for example by recruiting additional staff.
All these benefits are at risk if applications claiming exemption are not fully assessed.
Top tips for assessing exemptions
Based on the government guidance, and our conversations with many councils across the country, here are some top tips for how to assess BNG exemption claims effectively and efficiently:
1. Make clear the onus is on applicants to provide evidence. Require the applicant to supply a letter or form setting out how the development meets the exemption criteria. You can add this requirement to your Local Validation Checklist.
2. For self/custom build claims, you can judge whether you agree it qualifies. Where an application states that self or custom build exemption applies, national guidance states that LPAs must be satisfied that the initial owner of the home will have primary input into its final design and layout .You can ask applicants for evidence to help judge this.
3. For de minimis claims:
- If in doubt, ask for a Biodiversity Metric. Where evidence supplied in support of de minimis claims does not provide clarity on how habitats will be impacted, government guidance states that the applicant should be “strongly encouraged to provide a completed metric for the pre-development and post-development value for the onsite habitat and clear plans identifying the nature and size of this pre-development onsite habitat and how much of it will be impacted by the development”.
- Habitat can be impacted even if it isn’t being lost. The area of habitat impacted includes any habitats whose condition may suffer – for example due to lighting, footfall, or other disturbance. So even if less than 25 square metres of habitat is being lost, the application may not qualify for de minimis exemption due to these wider habitat impacts.
- Temporary impacts are still impacts. Defra has advised that even if impacts are temporary, such as disturbance during building works that will later be “put right”, these impacts still count when assessing whether de minimis exemption applies.
4. Be clear that an applicant not submitting a metric, on the assumption that an exemption will be granted, may waste time and money. If the criteria for exemption are found not to have been met, a full Statutory Biodiversity Metric must be supplied for a decision to be reached. Submitting a metric on application is likely to save time and money in this case.
5. If you have CIL, make use of the similarities with BNG. The Community Infrastructure Levy stipulates conditions for self-build exemption from this payment. If a development is not exempt from CIL, it is unlikely to be exempt from BNG.
6. Check that permitted development has been correctly classified. Where an applicant is claiming exemption through permitted development, check against government guidance to ensure the permitted development criteria are met.
The conversation about how best to check BNG exemption claims is evolving. We welcome feedback from across the sector on these tips, and any other approaches LPAs are using successfully. Please feel free to contact us on mycelia@verna.earth.