Lifescape secures significant clarifications from the Government: NPPF has not changed LPAs’ powers to conclude ambitious BNG plans

Lifescape is pleased to have secured significant clarifications from Government over Local Planning Authorities’ (LPAs) rights to conclude local plans and make planning decisions aiming to secure Biodiversity Net Gain (BNG) over 10% for their local area.

In September, we sent a pre-action letter to the Ministry of Housing, Communities and Local Government regarding new policies N1(2) and N2(3) of the National Planning Policy Framework (NPPF) - published in August 2026 - which directed LPAs not to have Local Plans requiring BNG in excess of 10%, or to give any weight to the element of the Local Plan policy requiring BNG above 10%, when determining planning applications. These policies suggested that the 10% BNG requirement in the Environment Act 2021 is a maximum, rather than a minimum, threshold.

We were concerned that the unnuanced and directive language in these policies undermined the statutory framework, contrary to clear case law over the limits of Government action by policy. In constraining BNG ambition, the policies are environmentally regressive and could result in weakening local environmental ambition to deliver biodiversity improvements through BNG, reducing incentives for investment in nature recovery, and creating significant uncertainty for conservation projects, landowners, developers and others working to restore biodiversity.

We estimated the reduced revenue for nature restoration in England as likely to be in the tens of millions of pounds (see our press release of 21 September).

The Government’s pre-action response letter (PAR) of 14 October – itself a material consideration for planning purposes – has confirmed our view that its policies cannot go so far as to amend the overarching statutory framework. In particular, the SoS has confirmed that:

• local plans which are contrary to the NPPF can be given more weight than the NPPF itself in planning decisions where the inspector has concluded that the evidence and local circumstances justify this (PAR, §35(d));

• policies N1(2) and N2(3) of the NNPF do not and cannot as a matter of law frustrate or amend the statutory framework (PAR, §25);

• it is a matter for the decision-maker to decide how much weight to give to development plan policy requiring BNG above 10% (PAR, §35(c));

• Lifescape is correct to assert (in §41 and §45 of our PAL) that:

  - the NPPF does not alter local authorities’ biodiversity duties or obligations under s. 40 of the Natural Environment and Rural Communities Act 2006 and the Environment (Local Nature Recovery Strategies) (Procedure) Regulations 2023 (PAR, §36);

  - Section 38(6) of the of the Planning and Compulsory Purchase Act 2004 (PCPA 2004) applies in relation to all extant development plan policies which require BNG above 10%. The weight that LPAs give to such policies is a matter for them and, despite the language of policy N2.3, they are entitled to give weight to such policies;

  - Policy N1(2) of the NPPF cannot seek to countermand or frustrate the effective operation of sections 19 and 19(1A) of the PCPA 2004, which require LPAs to prepare development plan documents which must include policies designed to contribute to mitigation of, and adaptation to, climate change; and

  - The NPPF, and policy N2(3), are important material considerations in planning decision-making, but do not have greater weight than other material considerations and can be departed from.

Lifescape are extremely grateful to have the advice and support of leading environmental Counsel Estelle Dehon KC, Nina Pindham and Deia Russell-Smith of Cornerstone Chambers.

While the Government’s clarifications are very welcome, we remain concerned that the Government's refusal to amend or retract the relevant policies means that LPAs could be misled as to their plan- and decision-making powers regarding BNG.

We have therefore indicated to the Government, by letter dated 11 November, that while we intend not to pursue our concerns to a full judicial review, we are intending to publicise the clarifications to ensure that LPAs and their relevant policy holders (as well as other BNG stakeholders) understand that the recent NPPF has not changed their statutory entitlement to achieving such BNG in their Area as local circumstances justify. We plan to take the following steps:

• Commissioning Counsel to write an open Opinion that can be relied on by LPAs to conclude planning policies which accord with their local BNG ambition, including above 10%, and to make planning decisions on that basis.
• Engaging in an outreach programme – disseminating our BNG NPPF “one-pager” and organising a Town Hall meeting once we have Counsel’s Opinion.

There are other aspects of the Government’s response which are concerning and in respect of which we intend to take further action:

• The Government’s refusal to disclose documents that would evidence proper discharge of the personal Ministerial duty to have due regard to the Environmental Principles Policy Statement under s.19 of the Environment Act (see our letter of 19 October and the Government’s response of 23 October). We are intending to raise this issue with the Office for Environmental Protection.
• The Government’s troubling assertions that: i) organisations which have not submitted responses to proposed policies under consultation do not have standing to raise legal challenges against a policy published at a later date, and ii) the failure of organisations to raise economic concerns in such a consultation justifies a Minister not considering those concerns to be a material element of a policy needing consideration.
• The Government’s ostensibly superficial “holistic” assertion that a policy in the round can be said to benefit disadvantaged communities and wider society, despite its own Equalities Impact Assessment identifying disproportionate impacts on communities with protected characteristics, in apparent contravention of the public sector equality duty under section 149 of the Equality Act 2010. We have referred this aspect to the Equality and Human Rights Commission for investigation.
• The apparent total failure of the Government to evaluate how the policies might impact delivery of the Government’s climate and biodiversity related commitments under the relevant United Nations framework treaties, the Environmental Improvement Plan or otherwise.

Adam Eagle, Lifescape’s CEO, said:

“This is an important win for nature recovery. We were concerned that the new BNG policies in August’s NPPF were a backwards step for biodiversity in our country. The message to Local Planning Authorities is now clear: you can continue to conclude local plans with BNG policies aiming for more than 10% BNG and make planning decisions on that basis, where local circumstances justify. That applies to existing and new plans and can be used in planning decisions too.”

Nola Donachie, Lifescape’s Managing Lawyer for Litigation, said:

“We are delighted to have secured these important clarifications from Government over the limits to its powers to change BNG through policy. It is nonetheless disappointing that the Secretary of State is not proposing to take the logical step of publicly clarifying those parts of the NPPF which are apt to mislead Local Planning Authorities. We will be making every effort to disseminate a clear message to LPAs over their continued powers to create ambitious local plans for BNG”.

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