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

Published: Mon 13th Jul 26

This statutory instrument amends the regulatory framework for biodiversity net gain in England by modifying the biodiversity gain hierarchy and establishing new exemptions for specific development types.

It directs that for non-major developments, onsite habitat creation, enhancement, and offsite gains carry equal weight in the hierarchy, with biodiversity credits serving as the final option.

The regulations introduce exemptions from the mandatory biodiversity gain condition for temporary developments lasting five years or less and for small-scale developments not exceeding 0.2 hectares, provided neither impacts priority habitats.

These changes apply to local planning authorities, developers, and the Secretary of State, while also revoking the previous exemption for self-build and custom-build projects.

Arguments For

The order states that modifying the biodiversity gain hierarchy for non-major developments allows for greater flexibility by treating onsite habitat creation, enhancement, and registered offsite gains as equivalent options.
Proponents argue that the new exemptions for small-scale developments (under 0.2 hectares) and temporary developments (under five years) reduce the regulatory burden on projects with limited environmental impact, provided they do not affect priority habitats.
The document specifies that the purchase of statutory biodiversity credits remains a last-resort option, maintaining a preference for physical habitat improvements where possible.
The legislation provides transitional arrangements to ensure that applications already in progress at the time of commencement are not subject to new requirements, providing legal certainty for developers.

Arguments Against

Legal scholars may question the removal of the exemption for self-build and custom-build developments, which could increase costs for individual homeowners and small-scale builders.
Environmental organizations have previously argued that simplifying the hierarchy for non-major developments might lead to a preference for offsite gains over onsite improvements, potentially reducing local nature recovery.
The limit of 0.2 hectares for the small-scale exemption may be viewed by some industry groups as too restrictive, while others may argue it is too large and could lead to cumulative biodiversity loss.
Implementation difficulties may arise in monitoring the five-year limit for temporary developments to ensure they are not extended beyond the exempt threshold through successive applications.

Part 1 Introductory

Citation, commencement and extent

-(1) These Regulations may be cited as the Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026.

(2) These Regulations come into force on 6th August 2026.
(3) These Regulations extend to England and Wales.

This section establishes the official title of the statutory instrument and sets the commencement date for its provisions.

Although the regulations extend to England and Wales, the substantive planning changes apply to the planning system in England.

Part 2 Amendment of the Town and Country Planning (Development Management Procedure) (England) Order 2015

In article 37A of the Town and Country Planning (Development Management Procedure) (England) Order 2015( 2 )(meaning of biodiversity gain hierarchy)-

(a) in sub-paragraph (b) for 'in relation to any onsite habitat which is adversely affected by the development' substitute 'in relation to any onsite habitat which is adversely affected by major development'.
(b) after sub-paragraph (b) insert-
'(c) in relation to any onsite habitat which is adversely affected by development which is not major development, compensating for that adverse affect by-
(i) habitat enhancement of onsite habitat, creation of onsite habitat or the availability of registered offsite biodiversity gain for allocation to that development;
(ii) insofar as none of the actions in sub-paragraph (i) can be done, the purchase of biodiversity credits.'.

This section bifurcates the biodiversity gain hierarchy based on the scale of development.

For developments classified as 'not major', it authorizes onsite enhancement, onsite creation, and registered offsite gains as equally preferred methods for compensation.

The purchase of government biodiversity credits is restricted to cases where none of the first three options can be achieved.

Part 3 Amendment of the Biodiversity Gain Requirements (Exemptions) Regulations 2024

In the Biodiversity Gain Requirements (Exemptions) Regulations 2024( 3 )-
(a) after regulation 7 (biodiversity gain site) insert-

' Development no larger than 0.2 hectares

7A. -(1) The biodiversity gain planning condition does not apply in relation to planning permission( 4 ) for development which meets the first and second conditions.

(2) The first condition is that the development does not impact an onsite priority habitat.

(3) The second condition is that the development is carried out on a site which has an area no larger than 0.2 hectares.

(4) The exemption in paragraph (1) does not apply in relation to planning permission where the application for planning permission was made before 6th August 2026.

(5) The exemption in paragraph (1) does not apply in relation to a section 73 planning permission where-

(a) the application for the original planning permission to which the section 73 planning permission relates was made before 6th August 2026; or
(b) the original planning permission to which the section 73 planning permission relates was granted before 6th August 2026.

(6) In this regulation-

(a) 'original planning permission to which the section 73 planning permission relates' has the same meaning as in regulation 3;
(b) 'priority habitat' has the same meaning as in regulation 4( 5 );
(c) 'section 73 planning permission' has the same meaning as in regulation 3;
(d) a habitat is impacted where the habitat is lost or degraded such that there is a decrease in the biodiversity value( 6 ) of that habitat.

Temporary development

7B. -(1) The biodiversity gain planning condition does not apply in relation to planning permission for development which meets the first, second and third conditions.

(2) The first condition is that the development does not impact an onsite priority habitat.

(3) The second condition is that the whole of the development for which the planning permission is granted consists solely of temporary development.

(4) The third condition is that the specified period does not exceed five years.

(5) The exemption in paragraph (1) does not apply in relation to planning permission where the application for planning permission was made before 6th August 2026.

(6) The exemption in paragraph (1) does not apply in relation to a section 73 planning permission where-

(a) the application for the original planning permission to which the section 73 planning permission relates was made before 6th August 2026; or
(b) the original planning permission to which the section 73 planning permission relates was granted before 6th August 2026.

(7) The exemption in paragraph (1) does not apply in relation to planning permission for temporary development where the effect of that planning permission, when taken together with any earlier grant or grants of planning permission for the same temporary development, is that the total of the specified periods exceeds five years.

(8) For the purposes of this regulation-

(a) 'original planning permission to which the section 73 planning permission relates' has the same meaning as in regulation 3;
(b) 'priority habitat' has the same meaning as in regulation 4;
(c) 'section 73 planning permission' has the same meaning as in regulation 3;
(d) 'specified period' means the period specified in the condition imposed on the grant of planning permission at the end of which-
(i) any buildings or works authorised by the permission are required to be removed;
(ii) any use of the land authorised by the permission is required to be discontinued; and
(iii) any works to reinstate the land are required to be completed.
(e) 'temporary development' means development for which planning permission is granted subject to a condition imposed under section 72(1)(b) of the Town and Country Planning Act 1990;
(f) a habitat is impacted where the habitat is lost or degraded such that there is a decrease in the biodiversity value of that habitat.'.

(b) omit regulation 8.

This section inserts two new exemptions into the 2024 Regulations.

Regulation 7A exempts sites 0.2 hectares or smaller, while Regulation 7B exempts temporary developments lasting five years or less, provided both avoid impacting priority habitats.

Additionally, it revokes Regulation 8, which previously exempted certain self-build and custom-build housing projects.

Part 4 Transitional and Saving Provision

-(1) Article 37A of the Town and Country Planning (Development Management Procedure) (England) Order 2015 continues to have effect as if it had not been amended by regulation 2 for the purpose of a biodiversity gain plan which relates to-

(a) planning permission where the application for planning permission was made before 6th August 2026; or
(b) a section 73 planning permission where the application for planning permission was made on or after 6th August 2026 and where-
(i) the application for the original planning permission to which the section 73 planning permission relates was made before 6th August 2026; or
(ii) the original planning permission to which the section 73 planning permission relates was granted before 6th August 2026.

(2) Notwithstanding the amendment made by regulation 3(b), regulation 8 of the Biodiversity Gain Requirements (Exemptions) Regulations 2024 continues to have effect, in relation to planning permission, in any case where the application for the planning permission was made before 6th August 2026.

(3) The biodiversity gain planning condition does not apply in relation to a section 73 planning permission where-

(a) the application for planning permission was made on or after 6th August 2026; and
(b) the biodiversity gain planning condition did not apply to the original planning permission to which the section 73 planning permission relates by virtue of the exemption in regulation 8 of the Biodiversity Gain Requirements (Exemptions) Regulations 2024 as that regulation had effect immediately before the amendment made by regulation 3(b).

(4) In this regulation-

'biodiversity gain planning condition' means the condition referred to in paragraph 13 (general condition of planning permission) of Schedule 7A to the Town and Country Planning Act 1990;

'original planning permission to which the section 73 planning permission relates' means a planning permission which is the first in a sequence of two or more planning permissions, where the second and any subsequent planning permissions are section 73 planning permissions;

'section 73 planning permission' means planning permission granted on an application made under section 73 of the Town and Country Planning Act 1990 (determination of applications to develop land without compliance with conditions previously attached).

This section provides legal protections for planning applications already in the system.

It ensures that the old hierarchy and the self-build exemption continue to apply to applications submitted before August 6, 2026, including subsequent variations made under section 73 of the Town and Country Planning Act 1990.

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