Infrastructure Planning Blog

Today’s entry looks at the implementation of Biodiversity Net Gain for nationally significant infrastructure projects, a new section 35 direction, and a revocation and re-submission of a Development Consent Order (DCO) application.

The Cranberries

The regime for applying mandatory Biodiversity Net Gain (BNG) to DCO applications is taking shape.  This will mean that all such applications made from 2 November 2026 will have to secure habitat improvements that are at least 10% better than the habitat that will be lost to the development or will deteriorate because of it.

On 2 June the government published the following:

• ten 'biodiversity gain statements' for different types of infrastructure
• one new piece of guidance and 11 updated guidance pages on BNG to refer to NSIPs, and
• an updated version of the BNG User Guide to refer to NSIPs

The biodiversity gain statements have the status of national policy statements and are effectively part of them.  They are the DCO way of setting out the requirements for applications, examinations and decisions relating to the BNG element of a project. They are all identical except for references to relevant NPSs, or lack of them.  There is one especially for NSIPs without an NPS, plus a special one for data centres, which don’t yet have an NPS.

The new piece of guidance – what to include in biodiversity net gain baselines for NSIPs – covers just that.

Importantly, unlike for town and country planning applications where all the land within the red line boundary must have its habitats analysed and set out, not all the land within Order Limits needs to be assessed, in two ways:

• first, a narrower than the Order Limits 'BNG boundary' can be set, primarily to exclude land for which only subsurface and/or airspace rights are being sought. Even then, evidence will probably be needed that the surface habitat won't be affected even if it is not directly touched.
• secondly, an implementation of the Fingleton review, when a narrower construction corridor width between wider Order Limits is known but not where it will be, a 'reasonable worst case' approach can be used where the highest habitat value corridor is used rather than the whole of the Order Limits (but this will still need the habitats to be known for the whole of the Order Limits to work out what the reasonable worst case is).

The biodiversity gain statement helpfully acknowledges (at paragraph 6.13 in each) that there may be survey gaps where 'the highest biodiversity value that is reasonable supported by the available evidence' is used.

Up to four requirements relating to BNG must be included in the draft DCO covering:

• an updated biodiversity gain plan to be submitted and approved before commencement
• an obligation for any shortfall to be secured before operation
• that the biodiversity gain plan(s) must secure at least 10% BNG
• an optional one if any onsite gains are secured by requirement rather than section 106 agreement or conservation covenant

If you want to know more, join our webinar on BNG for NSIPs on 10 June 2026 which will explain all this in more detail. You can of course contact my co-blogger BNGus Walker who loves talking about this.

Flight of the Concordes

Just when you thought it was all over, the Court of Appeal has refused permission for the legal challenge in respect of the Luton Airport expansion DCO and issued a judgment following their judgment reported here. We are advising so to keep it factual, the three-paragraph judgment concludes “we are not persuaded that the grounds of appeal against the refusal to extend time raise an arguable point of law of general public importance which ought to be considered by the UKSC”.

The Associates

The Secretary of State has made a section 35 direction for the Project Union East Coast project, which comprises 420km of new pipeline to form a network for hydrogen gas in and around the Humber, Teesside and the East Midlands. The direction includes the usual directions under section 35(1). Interestingly, the direction sets out that “the Secretary of State considers the question of whether works are associated development is one that should be decided on its own merits once a development consent application has been submitted and the parameters of every aspect of the project are known”.

This reminds me of the Aquind Interconnector project. In that case, the section 35 direction had identified telecommunications cables as “associated development.” The Examining Authority in that case took the view that “the ExA considers that this expectation was overridden and superseded by the Secretary of State’s s35 Direction, which makes the use of the surplus capacity of the fibre-optic cable for commercial telecommunications and the associated buildings part of the development for which development consent is required”. The Applicant’s position was that this was associated development notwithstanding the section 35 described it as a development which required development consent.  

In the decision letter refusing that project, the Secretary of State disagreed noting that “nothing in section 35 permits a direction to constrain, determine or oust the question of whether something is associated development or not”. That refusal has now been quashed, and by the by, we are still awaiting its redetermination, with nothing other than objections posted since January 2026.

Hellogoodbye

Finally, this week we say goodbye to the A47 Wansford to Sutton Development Consent Order which has been revoked.

We also say hello (again) to the Hampshire Water Transfer and Water Recycling Project. The project page notes “The applicant informed the Inspectorate that their 21 May 2026 application submission was unintentionally incomplete. The full application was received on 28 May 2026 and the statutory 28-day acceptance period commenced.”

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2026.  For more information see our terms & conditions.