On the 13th November an appeal of East Hertfordshire District Council’s decision to refuse outline planning permission for the erection of 7 dwellings (Application reference: 3/24/1813/OUT, Appeal reference: APP/J1915/W/25/3365544) was dismissed by the Planning Inspectorate. One of the main issues was whether the proposal would provide an adequate level of Biodiversity Net Gain, and the planning inspector found that the application did not meet the statutory BNG requirements and policies NE2 and NE3 of the EHDP. These state that proposals must provide sufficient data and must demonstrate how the development improves the biodiversity value of the site.
“28. BNG is required under a statutory framework introduced by Schedule 7A of the Town and Country Planning Act 1990. Under this framework every grant of planning permission (with a few exceptions) is deemed to have been granted subject to the condition that the biodiversity objective is met. This objective is for development to deliver at least a 10% increase in biodiversity value, relative to the pre-development biodiversity value of the on-site habitat. This increase can be achieved through on-site biodiversity gains, registered off-site biodiversity gains or statutory biodiversity credits. The biodiversity gain condition is a pre commencement condition: once planning permission has been granted, a Biodiversity Gain Plan (BGP) must be submitted to and approved by the planning authority before commencement of the development.
- In addition to completing the biodiversity questions on the application form, the appellant submitted a Small Sites Biodiversity Metric and a very basic BNG plan, which the Council accepted were sufficient to validate the application. I have not been advised that the Council requested any further information relating to BNG during the application process.
- The submission identifies that the scheme would deliver 120.97% BNG in habitat units and 299.44% BNG in hedgerow units, delivered through modified grassland, trees, native hedgerow and a ditch. The Council has raised concerns regarding the robustness of the assessment of baseline habitats, and thus the net gain being suggested. I have also expressed doubt over the extent of vegetation and tree retention on the site, and I note that the basic BNG plan which accompanied the planning application shows much of the suggested modified grassland, trees and native hedgerow would be on garden land. As BNG gains cannot be legally secured in private gardens, I cannot give any weight to the BNG plan.
- I am mindful of the difficulty in calculating post development habitat units for an outline scheme, where matters such as layout and landscaping are reserved, and I note that this would be covered by the BGP that must be submitted to discharge the deemed BNG condition. Development cannot commence until the BGP is approved. On this basis, the Planning Practice Guidance (the PPG) indicates it would generally be inappropriate to refuse an application on grounds that the biodiversity gain objective will not be met. However, the PPG states that decision makers may need to consider more broadly whether the biodiversity gain condition is capable of being successfully discharged.
- As there is insufficient information before me to be certain that the BNG calculations accurately reflect the baseline position, the proposal would fail to accord with the statutory BNG requirements, and Policies NE2 and NE3 of the EHDP. These state that proposals must provide sufficient data and must demonstrate how the development improves the biodiversity value of the site.”
This decision reaffirms the status quo and exemplifies the difficulties of providing adequate BNG onsite and the ongoing debate that “habitat and humans” do not mix easily. Purchasing BNG from offsite habitat banks is a simple solution to this problem which doesn’t detract from space in the red line boundary.