Statutory Instrument 2026/492 is a short commencement order with a wider planning effect than its length suggests. Made on 5 May 2026 and coming into force on 7 May 2026, it commences section 99 and Schedule 15 of the Environment Act 2021. Those provisions deal with biodiversity gain in nationally significant infrastructure projects. The legislation.gov.uk text shows that this is the eleventh commencement instrument made under the 2021 Act. It was signed by Mary Creagh, Parliamentary Under Secretary of State at the Department for Environment, Food and Rural Affairs. For promoters, advisers and decision-makers working under the Planning Act 2008, the key point is timing: from 7 May, biodiversity gain statements move from dormant statute to active law.
The instrument does not itself publish a biodiversity gain statement, set project-specific targets, or create a separate consent route. Its legal function is narrower and more important: it brings into force provisions already enacted by Parliament but not yet operative. Commencement regulations are often brief, but they determine when a statutory requirement can begin to affect real decisions. In this case, the change sits within the nationally significant infrastructure project regime rather than the ordinary town and country planning system. The source text is clear that section 99 and Schedule 15 concern biodiversity gain statements for NSIPs. That keeps the measure targeted, but it places the new requirement inside one of the most consequential planning systems in England.
According to the explanatory note, section 99 and Schedule 15 amend the Planning Act 2008 by inserting a new Schedule 2A. That new schedule requires the Secretary of State, on the next review of any relevant National Policy Statement concerning development in England, to include a biodiversity gain statement. Where no relevant National Policy Statement is in place, the legislation also allows the Secretary of State to issue a biodiversity gain statement separately. That changes the policy route by which biodiversity objectives can enter infrastructure decision-making. National Policy Statements already shape how major schemes are assessed and decided. Once biodiversity gain statements are attached to that structure, they gain a clearer statutory footing in the NSIP process rather than sitting only as a wider environmental consideration.
The most significant operational change appears in the amendments to sections 104 and 105 of the Planning Act 2008. As the note accompanying the instrument explains, those sections are amended so that the Secretary of State must not grant development consent for an application to which a biodiversity gain statement applies unless satisfied that the biodiversity gain objective in that statement is met. For the NSIP regime, that is more than a drafting adjustment. Once a biodiversity gain statement applies, it becomes part of the legal threshold for approval, not simply a background factor. Project promoters will need to show how the scheme meets the stated objective, examining authorities will need to test that case, and decision letters will need to show how the statutory requirement has been addressed.
New Schedule 2A also contains a delegated power allowing the Secretary of State to make regulations excluding descriptions of development from scope. That detail is easy to overlook, but it matters for implementation. It means the biodiversity gain statement regime can be refined later if ministers decide that particular forms of development should be excluded. Until any such further regulations are made, promoters with live or forthcoming projects will need to examine the position carefully. The practical questions are whether a relevant National Policy Statement exists, whether it is due for review, whether a biodiversity gain statement has been or could be issued, and whether any later exclusion regulations alter the position for a specific project category.
The explanatory material also states that no separate impact assessment has been published for these commencement regulations. The reason given is that the instrument has no independent effect on costs to business, the public sector or voluntary bodies beyond the provisions it brings into force. Defra says the full impact assessment was published for the parent Act rather than for this commencement step. That distinction matters when reading the measure. The commencement order is not presented as a standalone policy package with its own cost base. It is the legal trigger that activates an existing statutory scheme. The practical consequences will therefore be felt through planning policy reviews, biodiversity gain statements themselves, and future development consent decisions.
For planning teams, the immediate task is not to redesign every application overnight but to review evidence strategy against the new legal position. Schemes approaching examination or decision will need to track any relevant National Policy Statement review, any biodiversity gain statement issued by the Secretary of State, and any later regulations defining exclusions. Legal and environmental advisers will also need to consider how application material maps onto any biodiversity gain objective that becomes applicable. The order is short, the commencement date is immediate, and the compliance consequence sits directly at the point of ministerial decision-making. From 7 May 2026, biodiversity gain statements have an active route into the NSIP consent regime in England, and where they apply they can determine whether development consent may lawfully be granted.