The Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026 were made on 9 July 2026, laid before Parliament on 13 July 2026 and come into force on 6 August 2026. Signed by Defra minister Mary Creagh, the instrument makes targeted changes to the planning rules that sit behind the biodiversity gain condition in Schedule 7A to the Town and Country Planning Act 1990. In practical terms, the Regulations do three things. They adjust the biodiversity gain hierarchy for non-major development, create two new exemptions from the biodiversity gain planning condition, and preserve parts of the old regime for applications and permissions that fall on the earlier side of the commencement date.
Part 2 of the instrument amends article 37A of the Town and Country Planning (Development Management Procedure) (England) Order 2015. The statutory effect is to split the approach between major development and development that is not major development. For major development, the existing emphasis on addressing harm to onsite habitat through onsite action remains in place. For non-major development, the hierarchy is loosened. The Regulations state that habitat enhancement onsite, habitat creation onsite and the use of registered offsite biodiversity gain are to sit at the same level of preference, with biodiversity credits still reserved for cases where those routes cannot be used. The Explanatory Note confirms that this is intended to place onsite enhancement, onsite creation and registered offsite gains on an equal footing for smaller schemes.
That change matters because it gives smaller developments more room to assemble a compliant biodiversity gain strategy without having to show the same ordering of options that applies to larger sites. For local planning authorities, the decision-making task becomes more clearly divided between major and non-major cases. For applicants, the key question from 6 August 2026 will be whether the proposal falls within the major development category, because that classification now affects how the biodiversity gain hierarchy is applied. The legal position is still structured. Biodiversity credits remain the last-resort option. The Regulations do not remove the need to account for biodiversity value; they change the order in which certain delivery routes are treated for non-major development.
Part 3 inserts a new regulation 7A into the Biodiversity Gain Requirements (Exemptions) Regulations 2024. This creates a small-site exemption where two conditions are met: the development must not impact an onsite priority habitat, and the site area must be no larger than 0.2 hectares. The drafting is narrow. A habitat is treated as impacted where it is lost or degraded so that its biodiversity value decreases. The exemption is also prospective only. It does not apply where the planning application was made before 6 August 2026, and it does not apply to a section 73 permission if the linked original application was made before that date or the original permission was granted before that date. In effect, this is a new route out of the biodiversity gain planning condition for very small sites, but only for cases entering the system under the new timetable.
A second exemption, inserted as regulation 7B, applies to temporary development. Again, the development must not impact an onsite priority habitat. In addition, the whole development must consist solely of temporary development, and the specified period must not exceed five years. The Regulations include an anti-avoidance rule. A proposal cannot stay exempt if repeated grants for the same temporary development push the total of the specified periods beyond five years. The instrument also defines the specified period by reference to the condition that requires the authorised buildings or works to be removed, the use to stop and the land to be reinstated. For promoters of time-limited schemes, this is a material easing of the biodiversity gain requirement, but only where the temporary character of the permission is genuine and tightly conditioned.
The same Part of the instrument also removes regulation 8 from the 2024 Exemptions Regulations. The Explanatory Note states that regulation 8 was the existing exemption for certain self-build and custom build development. From 6 August 2026, that exemption falls away for new cases. This is one of the more important operational changes in the package. Some smaller housing proposals that previously sat outside the biodiversity gain condition will no longer do so simply because they are self-build or custom build. Unless another exemption applies, those schemes will need to be assessed against the ordinary biodiversity gain framework. For planning advisers and local authorities, that means application guidance and validation material may need updating before commencement.
Part 4 sets out the transitional and saving provisions, and these are likely to decide many real cases. The Regulations preserve the old version of article 37A for biodiversity gain plans linked to planning applications made before 6 August 2026. They also preserve the old hierarchy for certain section 73 permissions where the new section 73 application is made on or after 6 August 2026 but the original application was made before that date, or the original permission was granted before that date. The same approach is taken to the removed regulation 8 exemption. The old exemption continues to have effect where the planning application was made before 6 August 2026. In addition, where an original permission benefited from regulation 8 immediately before its repeal, a later section 73 permission can remain outside the biodiversity gain planning condition. The commencement date therefore matters, but it is not the only date that matters; the history of the original permission remains central.
For practitioners, the immediate task is to separate cases by application date, site size, development type and permission history. A proposal on a site of 0.2 hectares or less may be exempt, but only if no onsite priority habitat is affected. A temporary scheme may be exempt, but only if the full development is time-limited and the aggregate period does not exceed five years. A section 73 application may still be governed by older rules if the parent permission sits on the pre-6 August side of the line. Policy-wise, the instrument points in two directions at once. It relaxes parts of the regime for some small and temporary developments, while withdrawing a standing exemption for certain self-build and custom build cases. According to the Explanatory Note, an Impact Assessment has been produced and made available through government channels. The main effect for the market is not a wholesale rewrite of biodiversity gain policy, but a more segmented rule set that places greater weight on timing, scheme type and the status of priority habitat.