What regulation 7B does
The temporary development exemption is regulation 7B of the Biodiversity Gain Requirements (Exemptions) Regulations 2024, inserted with effect from 6 August 2026 by the Biodiversity Gain (Town and Country Planning) (Amendments and Transitional Provisions) (England) Regulations 2026. It applies where three conditions are met:
- The development doesn’t affect an onsite priority habitat.
- The whole development is temporary.
- The specified period for the development doesn’t exceed five years.
Individual trees are not priority habitat, so felling them doesn’t disturb the exemption. So far, so unremarkable. The interest lies in how the regulation defines its five years.
The five-year clock includes restoring the land
Under 7B(8)(d), the specified period is the period at the end of which buildings and works must be removed, any use must be discontinued, and — this is the part that matters — ‘any works to reinstate the land are required to be completed’.
Two things follow. First, the clock includes the reinstatement window, not merely the operational life of the development. A scheme needing five years of use plus a restoration period afterwards doesn’t qualify, and falls back into BNG. That’s a real constraint, and one to which an authority can hold a developer.
Second, and more revealingly, the regulation defines temporariness by reference to the land being put back into its pre-development condition. That’s an assumption of reversibility written into the heart of the provision — and it’s precisely the assumption removing a tree undermines. You can reinstate the ground but you can’t reinstate a mature tree, not in five years and probably not in 50. The development is temporary but the loss is effectively permanent.
The impact test also cuts the other way
There’s one further point in 7B(8)(f) that runs in the opposite direction, and it narrows the exemption considerably. This is the condition that the development won’t affect onsite priority habitat, which is habitat being ‘lost or degraded such that there is a decrease in the biodiversity value of that habitat’. There is no de minimis threshold in the definition, and — more strikingly — no temporal qualifier. Nothing requires the decrease to be permanent, or lasting, or significant.
For example, a five-year compound laid across priority grassland which would recover within a decade still causes a decrease in biodiversity value, and so is not exempt. The test is a simple one: on any site carrying priority habitat, an officer must ask whether biodiversity value decreases at all. If it does, regulation 7B doesn’t apply and a biodiversity gain plan is still required.
Note, too, that this is a test of impact, not of presence. A site may contain priority habitat and still be exempt, provided the development genuinely leaves it alone. But with the threshold set at zero, any encroachment into the priority habitat defeats it — even compaction from vehicle movements, storage on the habitat, or trampling on it that would recover in two seasons.
However, individual trees are not a priority habitat and are not protected by regulation 7B. A temporary development may remove trees or tree canopy without restriction. This is why we need to make separate provision to protect trees, especially in urban areas where development pressures are the highest. Imposing conditions when an application is granted is the one tool planning authorities have that can help resolve this.
Drafting reinstatement conditions to protect trees
Section 72(1)(b) of the Town and Country Planning Act 1990 expressly permits a local authority to impose a condition requiring the carrying out of works for the reinstatement of land, and it is for the authority to say what reinstatement requires. Restoring land to its former condition includes its vegetation cover. Replacement planting can therefore come within the condition, provided the authority can point to a policy that justifies it.
The temptation is to put everything into that reinstatement condition and deal with it at the end of the five years, but this is the wrong way round. A tree planted in year one has five years more of growth by the time the compound is dismantled; a tree planted in year five must start from scratch, after five years of canopy loss (though the BNG metric calculator can factor in this delay). The requirement would be better split across two conditions.
Another thing to get right is duration, and here the benchmark is not the usual five-year planning norm but the BNG regime timescales where, in the case of replacement trees, the target final condition is at least 30 years from completion of the development. This can be secured by a planning condition, a section 106 agreement or a conservation covenant. If the local standard is to deliver what the national regime would have delivered, then replacement trees need the same protection.
A local authority can draft the reinstatement conditions in two ways.
Condition A — replacement planting at the outset
No development shall commence until a tree replacement scheme has been submitted to and approved in writing by the local planning authority. The scheme shall identify every tree to be removed to facilitate the development together with its size category, assessed in accordance with BS 5837:2012 and the size bands in the statutory biodiversity metric, and shall provide for replacement planting at the ratios set out in policy [X], specifying locations, species, stock sizes, and a management and monitoring plan. The approved planting shall be carried out in the first planting season following commencement of development. The replacement trees shall be maintained in accordance with the approved management and monitoring plan, and retained, for a period of 30 years beginning with the completion of the development. Any replacement tree which within that period is removed, dies, or becomes seriously damaged or diseased shall be replaced in the following planting season with a tree of the same size category and, unless otherwise agreed in writing, the same species.
Reason: to ensure that the loss of trees arising from the development is compensated in accordance with policy [X], that replacement canopy begins to be established at the earliest opportunity, and that it is secured for a period equivalent to that required for habitat enhancements under the biodiversity gain condition.
Condition B — reinstatement at the end of the period
The use hereby permitted shall be discontinued, and all buildings, structures, plant, machinery and hardstanding removed, on or before [date]. The land shall thereafter be reinstated in accordance with a scheme of reinstatement to be submitted to and approved in writing by the local planning authority, all works of reinstatement to be completed on or before [date]. The scheme of reinstatement shall provide for the retention and protection of the replacement trees planted under condition A, and for the making good of any ground disturbance within their root protection areas.
Reason: the permission is granted for a limited period only, and to ensure the land is restored and the replacement planting retained.
Here are four practical notes on using these two conditions:
- Both dates in condition B must fall within five years if the applicant is relying on the exemption. The specified period ends when reinstatement is complete, not when the use stops.
- All conditions must satisfy the six tests set out in the NPPF and the Planning Practice Guidance: they must be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise, and reasonable in all other respects.
- Secure a 30-year obligation. Defra’s own guidance accepts a planning condition as one of the three mechanisms, so an authority imposing one is following the department’s lead rather than striking out on its own. But a condition is enforced against whoever owns the land at the time, and enforcement 25 years and, say, three owners later is a real practical difficulty. Where the planting is substantial, a section 106 obligation is the better instrument: it runs with the land, binds successors, and is registrable as a local land charge so it shows up on a search. For householder-scale replacement, where such an agreement could be disproportionate, a condition combined with a Tree Preservation Order on the replacement trees could possibly achieve much the same for a fraction of the cost. Monitoring should be proportionate too: reports at years one, three, five and ten will tell an authority what it needs to know without committing anyone to three decades of annual paperwork.
- A condition can’t require works on land outside the applicant’s control. This is most important on small sites — a 0.15 hectare plot which loses 18 mature trees can’t physically accommodate 90 replacements. Any workable standard therefore needs an off-site option — planting elsewhere (preferably nearby) in the authority’s area, or a commuted sum calculated on the cost of planting, establishing and maintaining the shortfall for 30 years — secured by a section 106 obligation rather than by condition. For smaller schemes a negatively worded Grampian condition, preventing occupation until the off-site planting has been carried out, is a cheaper alternative. A standard without that option will simply be negotiated down to whatever the developer believes will fit on the plot.
What regulation 7A leaves out
Set the two new exemptions side by side and the small-sites provision looks noticeably thinner than its temporary development counterpart. They share the priority habitat condition and the definition of impact discussed above. The following three things separate them.
There’s no anti-stacking rule. Regulation 7B(7) expressly aggregates successive grants for the same temporary development, so a developer can’t take five years and then another five. Regulation 7A contains no such equivalent. Nothing on the face of it prevents a larger site coming forward as a series of applications each at or below the threshold, every one of them exempt. Authorities can resist using ordinary principles about what constitutes a single development, but that’s a contest on the facts every time rather than a rule. The department plainly considered the risk of gaming the duration. It appears not to have considered the more obvious risk of gaming the area.
‘Site’ is not defined. Regulation 7A(3) refers to ‘a site which has an area no larger than 0.2 hectares’, and the interpretation provision at 7A(6) defines every other term but that one. The red-line boundary is the sensible reading and the one we’ve adopted, but it’s not what the regulation says. One consequence is at least helpful: area is two-dimensional, so canopy oversailing a plot adds nothing to it. The 0.18 hectare site described in our last post, carrying 0.33 hectares of canopy, remains a 0.18 hectare site.
There’s no protection against clearing the site first. The first condition asks whether the development impacts an onsite priority habitat, assessed as matters stand when permission is sought. Where the habitat has already been cleared, there’s nothing left for the development to impact. The BNG regime properly guards against this: habitat degraded since 30 January 2020 otherwise than in accordance with planning permission is assessed at its baseline pre-degradation state. But that guard operates within the definition of pre-development biodiversity value, and 7A doesn’t use that concept. However, this is a question for a planning lawyer rather than for us. If it doesn’t, first-clear-then-apply is a route directly into the exemption.
A circularity at the heart of both exemptions
‘Biodiversity value’ is not a loose description. It’s a statutory term, measured using the biodiversity metric and its guidelines. So the question of whether a habitat is impacted — and therefore whether the developer is exempt from producing a metric — is expressed in terms that only a metric can establish. The test for exemption from the metric is written in the metric’s own currency.
In practice this makes both exemptions self-certifying. The applicant asserts the exemption; without a survey nobody’s in a position to test the assertion, and no survey is required, because the exemption is precisely what removes the gain plan. Where a site plausibly carries priority habitat, the planning authority should ask for enough survey information to satisfy itself that the exemption is properly claimed. This is merely validating a claim, not imposing BNG by the back door.
What we’re asking for
- Where temporary permission is granted, replacement planting should be required at the outset with the reinstatement condition requiring those replaced trees to be retained and protected. This needs no change to national policy and could be adopted immediately.
- Replacement trees will be maintained and retained for 30 years from completion of the development, with failures replaced throughout that period — the same protection BNG requires for a significant on-site habitat enhancement.
- Authorities should ask for enough survey information to satisfy themselves that exemption is properly claimed, rather than accepting the applicant’s assertion.
- Defra should insert into regulation 7A an aggregation provision equivalent to regulation 7B(7), so that a larger site can’t be brought forward as a series of sub-threshold applications. It should also define what ‘site’ means for the purposes of the 0.2 hectare threshold.
- Defra should insert an anti-degradation provision to both new exemptions, so that neither the area threshold nor the priority habitat condition can be satisfied by prior site clearing before an application is made.
Notes
A note on citation. The two new exemptions are regulations 7A (small sites) and 7B (temporary development). They’re not part of the original 2026 Regulations themselves: these are amending regulations inserted into the Biodiversity Gain Requirements (Exemptions) Regulations 2024.
The model conditions above are offered as a starting point for discussion, not as approved wording. This post sets out our reading of the regulations; it is not legal advice, and anyone relying on the position for a consultation response, a condition, or an appeal should seek their own expert advice.
A companion post, ‘Too many exceptions: why BNG was never going to protect our trees’, looks at the much longer list of development the biodiversity gain condition has never applied to.
