Parliament’s statutory instrument watchdog has questioned the wording of England’s biodiversity gain exemptions for small sites and temporary development. The Joint Committee on Statutory Instruments published its Twelfth Report on Friday 23rd October 2026, drawing three related provisions to the attention of both Houses.
The underlying Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 were made in July and came into force on 6th August 2026. The committee has not struck them down or suspended their operation. Its concern was why the law needs two different dates when a later section 73 permission relates to an earlier approval.
For developers, landowners and planning officers, I think the useful lesson is to examine the history of the original permission before assuming a fresh application to vary conditions can benefit from a new biodiversity gain exemption. The committee’s exchange with the Department for Environment, Food and Rural Affairs (Defra) explains an unusual case that the wording was intended to capture.
What the biodiversity gain exemptions actually cover
Statutory Instrument 2026/790 introduced a new exemption for development on a site no larger than 0.2 hectares, provided it does not affect an onsite priority habitat. It also introduced an exemption for qualifying temporary development where the specified permission period does not exceed five years and no onsite priority habitat is affected.
These are targeted exemptions from the statutory biodiversity gain condition, not a general relaxation of planning control. They do not amount to permission to build, remove the need to comply with other planning conditions or dispense with separate legal duties protecting habitats and species.
The temporary development exemption has an important additional safeguard. Successive permissions for the same temporary development cannot be added together so that the total specified periods exceed five years. The regulations define the temporary development by reference to a removal, discontinuance and reinstatement condition under section 72(1)(b) of the Town and Country Planning Act 1990.
The date matters too. The new small-site and temporary-development exemptions are not available simply because an older proposal is still being handled after 6th August 2026. The regulations exclude applications made before that date and include specific safeguards for later section 73 applications relating to older permissions.
Why section 73 produces two separate date tests
Section 73 is the mechanism commonly used to seek permission to develop without complying with a condition attached to an earlier planning permission. The result is a new planning permission, but it remains legally connected to the original permission in the sequence. That connection explains why transitional drafting deserves close attention.
Inserted regulations 7A(5) and 7B(6) prevent the new exemptions applying to a section 73 permission if the original planning application was made before 6th August 2026, or if the original permission itself was granted before that date. Regulation 4 uses the same two alternatives for certain transitional provisions affecting the biodiversity gain hierarchy.
The committee wanted to know why the second limb was necessary. If an original permission had been granted before 6th August, would the application not inevitably have been made even earlier? That would make the grant-date alternative look redundant in the usual application-based case.
Defra’s response supplied the missing distinction. An original planning permission can be granted without an application for that permission. The department gave a permission granted by the General Permitted Development Order 2015 as an example, where a later section 73 permission relates to the earlier permission. In that situation the grant-date limb can operate even though there was no original application to which the application-date limb could attach.
Defra said the two-limb wording is intended to cover such unusual cases. The committee accepted that explanation for reporting purposes and recorded the provisions as requiring elucidation, with the department’s memorandum providing it. That is not the same as a finding that the biodiversity gain regulations are invalid.
What changed in August, and what did not
The 2026 instrument also changed the biodiversity gain hierarchy in article 37A of the Development Management Procedure Order. For non-major development, it allows compensation by suitable onsite habitat enhancement or creation, or registered offsite units, at the relevant level of the hierarchy, before biodiversity credits are considered where those routes cannot be used.
For major development, the hierarchy wording remains distinct. Anyone working on a scheme should therefore identify whether it is major development rather than treating the August amendment as a single rule applying identically to every project.
The instrument also removed the former self-build and custom-build exemption in regulation 8 of the 2024 Exemptions Regulations for new applications made on or after 6th August 2026. It preserves that exemption for qualifying applications made before that date. A separate saving applies to later section 73 permissions where the original permission benefited from the former exemption. Self-build status alone therefore no longer establishes a biodiversity gain exemption for a new application, although another exemption may still apply.
This is why it would be misleading to say that every section 73 permission arising from an old application automatically triggers biodiversity gain. The answer depends on the original permission, its earlier exemption position, the provision now relied upon and the detailed transitional rules. A practical decision needs the actual permission history, not simply a comparison between today’s application date and 6th August.
Three examples worth checking before submission
Suppose an applicant seeks a fresh permission for a 0.18-hectare scheme after 6th August 2026. The new small-site exemption may be relevant where the site area test is met and no onsite priority habitat is impacted. That does not prove the whole scheme is exempt until the legal conditions and factual evidence have been checked.
Now consider a new section 73 application that varies conditions on a permission originally applied for before 6th August 2026. The later application date does not, by itself, confer the new small-site exemption. The original application’s timing engages the explicit exclusion, and the wider transitional or saving position still needs to be examined.
Finally, consider Defra’s more unusual permitted development example. Where the original permission was granted under the GPDO rather than in response to an application, the grant-date limb is designed to catch the case. Whether a particular later section 73 route is available and what it changes must be established separately; the committee’s explanatory example is not a blanket endorsement of every proposed variation to permitted development.
What the parliamentary report does and does not decide
The Joint Committee met on 21st October 2026 and published this report on 23rd October. It brought the drafting point to Parliament’s attention under the ground of requiring elucidation. It did not announce a new biodiversity gain policy, amend SI 2026/790 or postpone the exemptions that had already commenced in August.
Nor does the report alter the underlying requirement to establish whether biodiversity net gain applies to a particular planning permission in England. This remains a question of the 1990 Act, Schedule 7A, the exemption regulations and the relevant transitional provisions considered together.
For practitioners, the practical improvement is straightforward. Record the dates of the original application and permission, identify whether that original consent arose on application or by another route, check any predecessor exemptions and then assess the section 73 proposal. It is a modest extra step that can prevent an incorrect biodiversity gain declaration and avoid unnecessary reworking of an application.
Primary documents and related guidance
The source is the Joint Committee’s Twelfth Report, especially section 5 and Appendix 5 containing Defra’s explanation. The operative law is SI 2026/790 as made, which commenced on 6th August 2026.
For background on the underlying regime, see Planning Geek’s biodiversity net gain guide and the government’s biodiversity net gain guidance. The parliamentary report is new scrutiny of existing law, not a fresh commencement announcement.
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