The Department for Environment, Food and Rural Affairs (DEFRA) has confirmed the entry into force of the Biodiversity Net Gain (BNG) rules on 12 February 2024.
On that date, four regulations simultaneously enter into force to ensure that BNG is delivered: The Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024, The Biodiversity Gain Requirements (Exemptions) Regulations 2024, The Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 and The Biodiversity Gain Site Register Regulations 2024 (the Regulations).
For more information on what BNG entails, please refer to our recent article, Biodiversity net gain – the final pieces of the jigsaw.
While biodiversity loss has long-term consequences and costs for all of us, in the short-term, the Regulations place costs of preservation and enhancement on developers. Whether provided on or off-site, the provision of BNG will represent a development cost. There may be significant financial implications around whether a development is, for the purposes of the Regulations, pre or post-BNG Day.
What happens on BNG Day?
The Regulations insert provisions into the Town and Country Planning Act 1990 that will imply a condition requiring the delivery of at least 10% BNG into new planning permissions. Transitional provisions mean that the implied condition will only apply to permissions where the application for that permission was made on or after 12 February 2024.
Section 73 applications made on or after 12 February 2024 will also escape the mandatory BNG condition provided that they amend a permission that was applied for before 12 February 2024.
In terms of mandatory BNG provision (and development costs) whether a planning application was made before 12 February could be critical.
Does everything change when BNG Day dawns?
The notional deadline for a BNG-free application is 23:59 on Sunday 11 February 2024. However, uploading documents to the Planning Portal or posting them through the letter box at council offices over the weekend will be risky.
In Camden London Borough Council v A.D.C. Estates Ltd (1991) 61 P. & C.R. 48 (Camden), the Court of Appeal ruled that an application was considered "made" at 'the date of the earliest moment when the application is received by its intended recipient'. The facts of Camden did not require the court to consider whether delivery to a closed office could constitute receipt, but the obiter comments in the case suggest that it may not. Lord Justice Nourse commented, "The application is not made by A unless and until it impinges upon B in some way."
Local Planning Authorities (LPAs) do not offer a 24/7 service. This means that despite the notional deadline being 23:59 on Sunday, 11 February 2024, it is arguable that as LPAs will not be open to receive documents from the end of office hours on 9 February, the real deadline is the preceding Friday afternoon.
It is clear from Camden that documents not delivered to the Council before 12 February will not meet the deadline. Anything arriving in the post on 12 February will be too late, regardless of when it was posted. No deemed service rules will apply, so trusting documents to the post this week may be risky.
If hard copy applications are delivered by hand, this should be during office hours on Friday 9 February when even if planning officers are not onsite there will be a reception facility to take receipt.
Online applications through the Planning Portal are technically possible over the weekend. The guidance on the Planning Portal website states that 'once the Local Planning Authority (LPA) has received your application successfully you will receive a confirmation email from the Planning Portal'. The use of the word "receive" is comforting and would seem to imply that even after physical offices close on Friday 9 February 2024, applications can still be "made" before the 12 February 2024 deadline. The confirmation email (with time and date stamp), and the unique reference number therein would appear to be proof of when the application was made.
However, our understanding is that the confirmation email is automatically generated following an automated check of the application. Does this impinge on the Local Planning Authority before one of its officers logs into the system on Monday morning? It's not clear that the proposed test in Camden is met. It would be preferable to upload on the Friday afternoon rather than risk your development being the test case on interpretation of received.
A final word of caution: Make sure that your application is complete. There are strict statutory requirements as to what must be included in a planning application. If anything is missing, the LPA may reject the application rather than accept corrections or additions, leaving you no option but to re-submit after BNG Day.
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