Whilst it is important to remember that BNG guidance is both in draft and also in some cases only a suggestion on implementation, it is tempting to try and read between the lines to see the potential ways that the BNG process might be implemented. These interpretations should be viewed with caution as much of it is also dependent on both the drafting of the initial s.106 agreement and the LPAs interpretation of application which may differ across the country.
The draft Biodiversity Net Gain Planning Practice Guidance describes how in the case of a planning obligation that secures offsite gain which then produces an excess number of units than required for this initial specific development, it may not be necessary to tie these excess units sold to future developments via further planning obligations. This reinforces the idea that a ‘habitat bank’ supplying units to multiple development sites will not need to implement a s.106 for each sale.
Under paragraph 15 of Schedule 7A of the Act (Town and Country Planning Act 1990) a planning authority must approve a Biodiversity Gain Plan if the registered offsite biodiversity gain allocated to the development has the biodiversity value specified in the plan in relation to the development, and any biodiversity units specified in the plan as purchased for the development have been so purchased, and the biodiversity net gain objective is met. This of course only applies to offsite habitats in a habitat bank and are on the Biodiversity Site Register run by Natural England, but it does imply that the LPA may not be able to reject a site based purely on location. This does provide some reassurance that once a site’s works are approved, they ought to be saleable, although it should be pointed out that other guidance allows for an LPA to implement BNG with the broad power of ‘in accordance with local policy’.
The final point relates to amending a BNG plan after it has been submitted for approval to the LPA. Note that this is referring to changing a BNG Offsite from the developer’s viewpoint where unsuitable habitat works are proposed for their developments site, rather than the landowner themselves making amendments or withdrawing land they have committed to certain specific types of works. We know that a site on the NE register may be withdrawn before any units are sold (committing the land) however, currently there is no mechanism to amend an approved BNG Plan itself, based on changing the types of works. The only proposed solution is to withdraw the original plan and resubmit a new one, stating that this new one supersedes the original plan. The solution from the landowner’s end would be the ability to either withdraw or amend the type of works in an agreement depending on the wording of the clauses of the s.106 of covenant. This would remove much uncertainty and risks of long-term commitment without selling the BNG units.
