Biodiversity Net Gain for NSIPs

Our previous briefing looked at what Biodiversity Net Gain (BNG) would mean for developers promoting projects through the TCPA regime. 

This second briefing considers BNG in the context of Nationally Significant Infrastructure Projects (NSIPs).  We will cover net gain for marine projects - so-called Marine Net Gain (MNG) - in a separate briefing.

Introduction

As originally envisaged in the Environment Bill, the mandatory BNG regime was not intended to apply to NSIPs.  

This is because the Government considered that these projects "can have fundamentally different characteristics to other development types" [1] and so the Government believed further work and engagement with stake-holders was required.  However, in response to widely expressed concerns that the omission of NSIPs would lead to the potentially most environmentally damaging schemes being excluded from the BNG regime, the Environment Bill was amended to include a BNG requirement for NSIPs.  This amendment was secured within what is now section 99 and Schedule 15 of the Environment Act 2021 (2021 Act). 

Commentary

We now await the outcome of the consultation to see what variant of the BNG regime emerges for NSIPs although, as noted above, this will be the subject of further consultation in any event.  Given the timetable that the Government has set for the publication of the first biodiversity net gain statements (November 2023) and the need for the same to be laid before Parliament, any further consultations will need to happen fairly promptly if the Government is to adhere to its 2025 target.

What does this mean for developers wishing to bring NSIPs forward over the next few years?

As well as continued participation in any of the Government's further consultations on BNG, any developer planning to advance a DCO application would be well advised to start building BNG into their proposals now.  This is because, notwithstanding the Government's proposed timetable for the implementation of the mandatory BNG regime, BNG is, to an extent, already here anyway.   By way of example, the draft Overarching NPS for Energy (EN-1) published last year included a new section on net gain which advised that "energy NSIP proposals should seek opportunities to contribute to and enhance the natural environment by providing net gains for biodiversity where possible" [2].  In view of the BNG requirement for NSIPs now in the 2021 Act, one would expect this draft policy wording to firm up to reflect the new legal requirement in the next version of EN-1.  

Finally, based on the recent consultation paper, those infrastructure bodies with large property estates/portfolios will have the potential opportunity to develop estate-wide strategies for meeting BNG.  This is something for such organisations to start thinking about, particularly where they plan to advance their own NSIP applications in the near future.