25th March “Both sides of the BNG coin” seminar – Part 3
PART 3 – EXPERIENCES OF HABITAT BANK CREATION
Alasdair Squires is …
Due to popular demand from those who could not attend the BNG seminar in March, we make no apology for our “home-made” mobile phone recordings interspersed amongst the presentation notes. There is a full video of the presentation at the end of this webpage if you prefer not to read the notes.
Setting up a habitat bank is more than just planting trees or digging ponds; it is a combination of ecology, land management, legal and finance. It is the process of transforming undervalued land into a valuable natural asset that generates ‘biodiversity units’ allowing for developments to proceed.
1. Brief overview/context
| 10% Net Gain |
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| Developments |
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| The Mitigation Hierarchy |
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| Habitat Banks |
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2. Initial LPA investigation
Seeing if the LPA are available as that is our first option simply because in most cases long-term monitoring is cheaper when done by the LPA, in some cases by a lot. This can have a big impact especially for smaller sites.
- Fee structures and schedules
- LPA Ecological assessment
- LPA Legal Fees
- Long term Monitoring Fees
- Structure of Payment
- Monitoring processes
This needs looking at an early stage as LPAs are not always an option:
- Monitoring habitat banks is a discretionary service from the LPA
- Cheaper
- Accountable
- Reliable
- Not always an option
In these cases, a Responsible Body is an alternative and they have merits as they tend to:
- Quicker to implement, potentially more flexible in approach.
- More expensive long-term monitoring
- Simply that LPA may not be an option
Therefore, it is Important to investigate LPA policy/costs prior to committing to the project and factor this into your budget.
3. High Level Title Deed Checklist
We recommend that at the outset that a high-level title deed checklist is undertaken to identify any issues that may prevent the project from proceeding.
Don’t leave this to the start of the legal stage as you may end up with significant delays or even halting the project having already invested monies in it.
- Identify any potential problems at an early stage
- All named landowners present and correct: signatories to the S106
- Charges over Title in favour of third parties
- Land interests
- Potentially need consent from Natural England for works involving a SSSI, SAC or SPA
Example issues that may be flagged include:
- The Exception of mines and mineral rights from title
- Other charges over Title in favour of third parties.
- And a range of Land interests Licences, option agreements, shooting rights etc
4. Access
You will have to give permission for LPAs/RBs to enter the land for monitoring including sometimes for spot checks from their staff or a subcontractor.
There will need to be an access route to the nearest public highway which you have sufficient authority to grant rights over (if not public). Sometimes access routes can be restricted or not suitable for these purposes.
These should be carefully considered and confirmed at the outset, especially where you do not own the freehold of the access route.
5. The HMMP
It is important when deciding on initial proposals to factor in Secondary Habitat Creation and to comment on the potential for this in the HMMP then ensure the S106/CC has clauses clearly allowing for this.
Once the habitats in your bank achieve their stated aims there may be scope to enter a new agreement to enhance the habitat further to a higher condition or distinctiveness
| Agreement 1 Baseline (1ha) | Baseline Units | Agreement 1 Habitat Works | Post-works Units | Net Units | Agreement 2/ Re-baseline and secondary habitat intervention (1ha) | Baseline Units | Agreement 2 Habitat Works | Post-works Units | Net Units | Total Net Units |
| Modified Grassland (moderate) | 4 | Neutral Grassland (Good) | 8.69 | 4.69 | Neutral Grassland (Good) | 12 | Lowland Meadow (Good) | 16.71 | 4.71 | 9.4 |
| Temporary Grass/clover ley | 2 | Neutral Grassland (Poor) | 3.72 | 1.72 | Neutral Grassland (Poor) | 4 | Traditional Orchard (Moderate) | 6.63 | 2.63 | 4.35 |
| Temporary Grass/clover ley | 2 | Neutral Grassland (Moderate) | 6.2 | 4.2 | Neutral Grassland (Moderate) | 8 | Traditional Orchard (Moderate) | 9.31 | 1.31 | 5.51 |
This is demonstrated here with rough examples, demonstrating the concept.
You could have an agreement enhancing your grassland to a more species rich one producing 4.69 units, then re-baseline to start again from this point and go to lowland meadow for a further 4.71 units, you would total 9.4 units from that ha.
This 2nd habitat type will usually be of a more distinctive type and potentially worth more.
Sometimes the metric may have produced more units by going direct to the higher second type although having said that with other types of habitat it will produce more by staggering these works into two agreement,
Either way the main reason to do this is in cases where it may not have been realistic to jump to the final habitat in one go so it is like a stepping stone to reach this optimal outcome.
This is especially pertinent if your site is one that involves a stage of habitat creation so for example allowing for a change of broad habitat such as cereal to grassland rather than just enhancement e.g. grassland to a different grassland type.
- A ‘safer’ initial habitat may be selected rather than a high-risk habitat which may carry a greater risk of failure/be harder to justify
- Cannot downgrade a ‘condition’ even if enhancing to a higher distinctiveness habitat
- Won’t always be possible to improve anything and no guarantee on when you can actually begin the secondary works
- Costs of re-baselining
- Ensure not detrimental to any other agreed habitats
- Potentially increase monitoring costs,
- Extend the term of the project by another 30 years from this point
6. Supporting data for the HMMP
Various data should be collected prior to deciding what habitat is possible for example. Backing up the proposals with soil analysis, as if not done at the time, it will likely be requested by the assessor anyway, and if not considered and factored previously it may lead to additional lengthy measures before starting works such as nutrient stripping the soil if the levels are found to be too high.
Back up/justify the proposals:
- Soil analysis
- Hydrological assessment/Flood risk
- Archaeological/Geophysical survey
- Arboricultural information
- Relevant stakeholder input/support/commenting
Others may need to be done at a later point depending on what is actually being proposed
- so maybe a need for hydrological assessment /geophysical surveys
- relevant stakeholder input/supporting/commenting on proposals sometimes have been required by an LPA on some of our sites like buglife/wildflower meadow groups etc
7. Time limit of initial report/assessment
This is the time between site survey and the point of HMMP assessment. Generally, we’ve had assessors suggest baseline data is typically valid for at least 18 months to 2 years, others 3 years (depending on habitat type and their ecological opinion) and assuming management practices haven’t changed in the meantime.
If it’s an arable field kept in cereals then shouldn’t be a need, if its permanent pasture in some sort of stewardship scheme then you may have increased the condition and so this will need to be reassessed.
- Once an LPA starts their assessment it should not generally require revisiting if this time period lapses before a site is approved, although in some cases there may be a need for updated soil tests. But again, depends what time frame we are talking about
- Where the assessment is yet to begin, and it is outdated, there will usually be a requirement for the baseline to be reassessed which will have the costs of a new site visit, may affect net unit output and even require new habitat proposals.
Therefore, there is some urgency to starting this assessment process rather than sitting on your HMMP otherwise a further site visit/assessment may be required as this may result in:
- a requirement for baseline reassessment and so the costs of a new site visit,
- may affect net unit output
- require new habitat proposals
- also applies to phasing if the habitats do not start immediately
8. Term of the Project
Once initial works have been completed for a phase, they must be maintained for at least 30 years from the point these initial works are completed.
This exact point may be difficult to define due to a range of habitats which have a range of requirements and risks but we have found its helpful to clearly state the point it will ideally be classed as complete, subject to caveats and the need for adaptive management depending on what happens on the ground. A completion notice is them issued to formalise this stage.
It is important if you are staggering works in phases to bear in mind that the overall project may be extended far beyond 30 years if you are holding areas back as you are not starting works until that phase goes live.
9. Cashflow/proof of funding
It is vital to consider the costs of habitat works, both the initial set up and long-term management.
In many cases consideration of cash flow/funding is a requirement of an LPA to agree to assess/monitor a site. A 30-year cash flow model for initial creation costs and long-term running and management of site should be put together.
Funding will need to be considered and whilst income from sales will be the main source, there is a need to show how sufficient funds will be kept for long-term maintenance for the duration of the agreement
- For the majority this will be holding a portion of income from sales in a separate bank account
- This cashflow should be done anyway to give an indication of the minimum return required from the number of units available.
- Third party bond
- guarantee
- ring fenced fund etc.
10. Other agri-environment schemes
Before starting works there is a need to withdraw from any agri-environment schemes that are not distinct from proposals or conflict or harm them. Some agri-environment agreements may continue but must not be funding the same actions twice for the same outcome.
The good news is that policy is generally that there is no need for repayment of funding received to date, if the BNG is for a better ecological outcome which is highly likely. Withdrawal is confirmed on a case-by-case basis by the RPA.
Potentially this allows for you to continue to receive payments from a public funded scheme on land in an un-activated phase of a habitat bank prior to the BNG works getting underway.
A re-baselining may be needed and there may be a risk that you have increased the habitat value inadvertently.
- Usually no need for repayment of RPA funding if for equivalent or better ecological outcome.
- Case-by-case basis by the RPA.
- Potentially receive payments from a public funded scheme on land in an un-activated phase.
11. Autonomy (to an extent)
While the mandatory approach for Biodiversity Net Gain (BNG) is set nationally, Local Planning Authorities (LPAs) have some discretion in how they implement, assess, and monitor habitat banks locally.
An LPA has autonomy (to an extent) in its application of BNG after statutory requirements and can add extra conditions, such as requiring more than 10% net gain from developments (a positive for the habitat bank creator) to only focussing on assessing banks in certain priority habitat areas (a negative unless your land is within these areas). Other LPA factors include Some LPAs setting minimum unit requirements for each site, such as Somerset, where each Habitat Bank is expected to have a minimum of 10 units
- In such situations using a Responsible Body may be the alternative.
- to be clear the above is regarding LPA involvement in habitat bank assessing/monitoring not their duty to apply BNG in the planning process.
12. Legal Requirements
There is an importance for well drafted parachute clauses for areas not used/works not begun. This can be a vital tool to mitigate potential risks or if a better alternative for the land comes along. And is the main point of phasing.
The increased costs from multiple phases may be mitigated to an extent by alignment, where possible, to combine points of monitoring/visits and the costs for these.
13. Takeaways
- Engage Professionals early to ensure your habitat design is both ecologically viable and financially sound.
- Consider all potential monitoring options
- Costs for monitoring may increase depending on your approach to phasing
Alasdair Squires would be pleased to hear from you if you have any queries or questions you would like answered in respect to his presentation. Please ring him on 01392 823 935 or email bng@townsendcharteredsurveyors.co.uk.