As we all try and peer through the BNG fog of swirling draft guidance and statutory instruments ever being updated and amended without notice, to see how the mandatory BNG process will be implemented, so often one query answered creates more. These observations should be viewed with caution as only some of the landscape starts to appear. It also remains heavily dependent on both the drafting negotiation with each LPA in respect to the s.106’s, how and if there will be enough Responsible Bodies to enable conservation covenants to be widely used and how much leeway there will be for LPAs’ interpretation to differ across England.
The current Biodiversity Net Gain Planning Practice guidance for LPAs raises just one such illustration which states:
“What could be included in section 106 agreements in relation to biodiversity net gain?
Matters that could be covered in planning obligations include management and monitoring arrangements, dealing with excess net gains to be used for other developments, offsite gains and circumstances where credits can be used as a last resort.
Where offsite gains are already registered and subject to a planning obligation or conservation covenant, it may not be necessary to tie them to development with another planning obligation.”
This guidance describes a case of where a planning obligation secures Natural England registered offsite gain for a development and the registered offsite is subject to its own planning obligation or conservation covenant. If this produces an excess number of units than required for this initial specific development, it may not be necessary to tie excess units sold on to future development via further planning obligations.
This might imply that a ‘habitat bank’ supplying units to multiple development sites may not need to implement a s.106 for each sale. This might apply to the purchaser who buys a larger ‘bank’ of units than required for their development and uses them on other sites or sells them on. Could it apply to the landowner across multiple sales from their habitat bank?
