Biodiversity Net Gain (BNG) has emerged as a key consideration in sustainable development, aiming to leave the natural environment in a better state than before development began. With the implementation of mandatory BNG requirements starting on 12 February 2024, developers and landowners must understand how to secure off-site BNG. This blog articles provides insights into the legal mechanisms for securing off-site BNG, including planning obligations and conservation covenants.
Understanding Off-Site BNG
Off-site BNG involves achieving biodiversity gains on land located outside the red-line boundary of a development. To use off-site land for BNG, the site must be registered as a biodiversity gain site. There are two primary legal mechanisms for securing off-site BNG: planning obligations (section 106 agreements) and conservation covenants.
Planning Obligations (Section 106)
Planning obligations, or section 106 agreements, are legal agreements between a planning authority and a person or persons with an interest in the land. They are used to secure obligations relating to land development and can be conditional or unconditional. Penny Simpson, Partner at Freeths, shares key insights into planning obligations:
- Stand-Alone Use: Planning obligations can be used without a linked planning application when securing off-site biodiversity units (BUs), provided the habitat enhancement works don’t require additional planning consent. This flexibility can help landowners secure BUs without needing a specific planning application.
- Required Provisions: A planning obligation for BNG must contain two key provisions: the habitat enhancement works that generate BUs, and the 30-year management and maintenance obligations for those enhancements. The latter must start after the completion of the enhancement works, as outlined in section 100(2)(b) of the Environment Act 2021. This may pose challenges for projects that allow for gradual rewilding.
- Monitoring and Enforcement: Planning obligations must address the local planning authority’s (LPA) rights and obligations to monitor and enforce the landowner’s compliance. This includes establishing a funding mechanism, such as an up-front lump sum or periodic payments, to support the LPA’s monitoring role. It also involves defining the LPA’s rights to enter and inspect the land.
Conservation Covenants: An Overview
Conservation covenants are legal agreements made between a landowner and a designated “responsible” body, such as a conservation organization or a government agency. These covenants are designed to create long-term conservation commitments, ensuring that both current and future landowners uphold specific environmental or biodiversity-related obligations.
What Conservation Covenants Achieve
Conservation covenants can be used to secure biodiversity gains and habitat improvements, offering a flexible solution for meeting off-site Biodiversity Net Gain (BNG) requirements. Because they can be applied to various locations, they serve as a versatile tool for landowners and developers to support conservation efforts. However, due to their long-term impact, local planning authorities (LPAs) must evaluate their ability to monitor and enforce these agreements effectively.
Key Considerations for LPAs
When it comes to conservation covenants, LPAs need to pay close attention to several critical factors:
- Scope of Conservation Covenants: These covenants can secure conservation benefits on land situated anywhere, providing broad flexibility. However, the LPA must be capable of overseeing the covenant’s compliance throughout its lifespan, which could extend for decades.
- Geographic Impact: The effectiveness of conservation covenants can vary depending on where the off-site land is located. Habitat units generated from land within neighboring LPAs or National Character Areas (NCAs) are subject to a 25% reduction in value, while units from outside these boundaries are reduced by 50%. This decrease can significantly affect the overall number of habitat units a project can generate, which has implications for planning outcomes.
LPAs should carefully consider these factors when working with conservation covenants to ensure they have the resources and processes in place to manage these agreements and meet the desired conservation objectives.
Selling Biodiversity units from Farmer-led Enhancement Projects
- Early Baseline and Good Ecology: Establish a baseline early with the help of a qualified ecologist. This will help you determine whether a biodiversity enhancement project is viable before engaging in legal agreements.
- Finding Buyers: Developers requiring biodiversity units for planning applications are likely buyers. Consider how you will market and sell your units—local brokers and online marketplaces are emerging options.
- Option Agreements: These agreements allow developers to reserve the option to purchase biodiversity units upon receiving planning permission. The deposit, or reserve fee, is paid upon signing, with the remainder paid if developers exercise the option. This arrangement provides security for both parties during the approval process.
Conclusion
Securing off-site BNG involves a complex legal framework, requiring careful planning, clear legal agreements, and effective monitoring. These expert insights offer a valuable starting point for navigating the legal aspects of off-site BNG. However, for specific guidance and legal advice, always consult with legal professionals who specialize in biodiversity and planning regulations.
If your development needs a biodiversity net gain assessment, or for more information about any of the ecological services that we provide, please call us on 02920 650331, or email us at enquiries@acerecology.co.uk.
