BNG is now a mandatory condition of planning permission
What does this mean?
When granting planning permission, the local authority will usually set out certain conditions that must be met. These can range from work not starting before a certain road is built to restricting labour hours or ensuring the development is compatible with local design.
Since 12 February 2024, most planning permission, with some exceptions, can only be granted if the landowner or developer can show that they are not just offsetting their biodiversity loss, but are replacing it with a minimum 10% biodiversity net gain (BNG) over a period of 30+ years.
How will this work in practice?
Not every developer or landowner will be able to attain 10% BNG on-site. Some will have to look at off-site measures and some will have to resort to buying statutory biodiversity credits – a new government scheme that also went live on 12 February.
There are two main legal mechanisms for securing BNG. On-site BNG requirements can be secured using a section 106 (S106) agreement. This is an agreement with the local planning authority as part of the planning permission.
Off-site BNG can be secured through S106 agreements also, but owing to restrictions in the legal mechanism, a new system of ‘conservation covenants’ has been introduced. More on this below.
What has changed for developers?
Landowners and developers will need to include a number of documents with their application for planning permission, including:
- the statutory biodiversity metric baseline and uplift calculations
- a biodiversity gain plan: this is the proposal for achieving on-site or off-site BNG or any statutory credits needed
- a habitat management and monitoring plan (HMMP), which sets out how the habitats will be created, managed and monitored for a minimum period of 30 years
- proof of ownership or the option to purchase the off-site land or BNG units.
What are biodiversity units?
The new laws have created a new market for biodiversity units. It is expected that the market will develop similarly to that of carbon offsetting, but it is still early days.
Landowners can create and/or enhance areas for habitats on their land and register the resultant uplift in biodiversity units (along with a legal agreement) on the government’s new Gain Site Register. These units can then be sold to developers who need to secure off-site BNG.
What are conservation covenants?
Land law has limits on what agreements can be passed on to future owners of land. Agreements that restrict the use of land (restrictive covenants) can bind future owners, but not positive obligations.
S106 agreements (planning obligations) are one way of getting around this, but they are inflexible in their legal structure.
Conservation covenants are agreements on how an area of land can be used – and can include positive obligations as well as restrictive ones. They have to be for the public good and have a conservation purpose. Once a covenant has been agreed, it is registered as a local land charge and becomes binding for all future owners of the land.
The agreement must be between the landowner and a ‘responsible body’. A responsible body can be:
- a local authority
- a public body or charity, if at least some of its main purposes or functions relate to conservation
- a private sector organisation, if at least some of its main activities relate to conservation.
The organisation must apply to Defra and meet its eligibility criteria.
What does a responsible body do?
The role of the responsible body is to monitor the landowner’s obligations under the covenant and to ensure the land is being used as it should be.
So far, the only responsible body is Natural England; however, RSK Biocensus has submitted its application to Defra in December 2023. If the title is granted, it will mean RSK Wilding will be able to take on clients wishing to enter into conservation covenants and oversee conservation sites, providing monitoring and assistance over periods of 30+ years.
Read the full Defra guidance