Posted by: Land Use
Policy Team
What are the exemptions?
The exemptions to the mandatory requirement were set out in the
government's response to the BNG regulations and policy
consultation. The exemption
legislation was laid before parliament on 19 January and
will become law when BNG goes live on 12 February.
The list of exemptions from the BNG requirement is narrow and
focused, keeping the policy ambitious, whilst being proportionate
and deliverable for developers and local planning authorities:
Development below a de minimis threshold
This exemption applies to development that does not impact
a priority habitat and
impacts less than 25 square metres (e.g. 5m x 5m) of non-priority
onsite habitat (such as modified grassland) or 5m for
non-priority onsite linear habitats (such as native hedgerows).
This exemption is designed to ensure that BNG does not apply to
either very small-scale development or development which does not
impact habitat, through loss or degradation within the red-line
boundary. In practice, this will be demonstrated by a decrease in
the biodiversity value, which is determined by the biodiversity
metric.
If a development impacts less than 25 square meters of
non-priority habitat but 5m or more of non-priority linear
habitat is negatively impacted, or vice-versa, then the exemption
will not apply and all habitats will be subject to BNG.
If any priority habitat within the red line boundary of the
development is impacted, the exemption will not apply and all
habitats will be subject to BNG.
Developers should consult publicly available data sets on
priority habitats to check whether there is priority habitat on
site, they do not need to seek specialist advice to record the
presence of priority habitat.
An example of a de minims exemption would be a minor extension to
a visitor centre at a public nature park to accommodate a new
accessible ramp and entrance lobby on an existing hardstanding
area. This proposal would not negatively impact or alter any
habitat, but the red line which defines the development is likely
to contain more than 25sqm of non-priority habitat.
It’s worth remembering that existing sealed surfaces such as
tarmac or buildings are assigned a zero score in the statutory
biodiversity metric, meaning that these surfaces are effectively
exempted from the 10% net gain requirement.
This exemption ensures that BNG is applied proportionately and
that a development does not incur unnecessary extra cost to, for
example, comply with accessibility requirements as in the example
above. It also encourages developers to design in ways to avoid
impacting the habitat on site in the first place, following the
biodiversity gain hierarchy.
Further information on this exemption, including what evidence
will be required to show that a development is in scope of this
exemption, is available in the planning practice
guidance.
Householder Development
This exemption applies to development to an existing house
(including development within the curtilage of a house.) An
example of this type of development is adding a side-return.
It does not cover applications for change of use of a house or to
change the number of dwellings in a building.
Biodiversity Gain Sites
Where an off-site biodiversity gain project itself requires
planning permission, the enhancement may require its own 10% net
gain. This would then effectively decrease the biodiversity gains
created. This exemption will prevent that. This applies to:
- developments which solely enhance biodiversity to achieve the
BNG planning condition for another development through off site
enhancements of habitat.
- development undertaken to fulfil the BNG planning condition
and for the purpose of permitting the public to access or to use
the site for educational or recreational purposes without the
payment of a fee.
Small Scale Self-Build and Custom Housebuilding
To support smaller developers, we are exempting small scale self
and custom build development from the BNG requirement. This
exemption applies only to development that:
- consists of no more than 9 dwellings;
- is carried out on a site which has an area no larger than 0.5
hectares; and
- consists exclusively of dwellings which are self-build or
custom housebuilding as defined in section 1(A1) of the Self-build
and Custom Housebuilding Act 2015. This definition covers
development where local planning authorities are satisfied that
individuals have had the primary input into the final design and
layout of a house to be occupied as homes for themselves.
This size criteria will ensure that only small self and custom
build sites are caught by the exemption. Self and custom build
sites in excess of these thresholds, which are impacting more
habitat and so have more scope to deliver gains for nature will
to be required to deliver a net gain. This will apply whether
they are a standalone development site or secured for self or
custom build as part of a major development.
High Speed Railway Transport Network – The
exemption for the High Speed Railway Transport Network covers
development which is part of or ancillary to the remaining phases
of the high speed transport network.
