The Act requires developers (and promoters of land such as Summix) to contribute to at least 10% net gain in biodiversity on their land or land that they are promoting for development. Some Local Authorities may include policies in their Development Plans requiring a higher percentage.

There is an onus on the development industry to set out how their net gain will be achieved as part of any planning application. The Government’s policy priority in relation to BNG is to improve habitats on every development site across the country.

There is recognition that it may not always be possible to meet the requirements by improvements on site. To ensure flexibility there is a hierarchy of measures, almost as a sequential test, showing the order in which developers or promoters must consider how they can achieve the required biodiversity percentage uplift:

• first priority is to improve existing on-site habitats;
• next option is the creation of new on-site habitats;
• only if it is impossible to secure the required gain on-site will developers be permitted to meet their obligations by enhancing or creating habitats somewhere else; and
• as a last resort, developers may purchase statutory biodiversity credits to off-set their responsibility
  

Demonstrating how the achievement of BNG uplift will be possible will require assessments of biodiversity and developers will need to establish a baseline and thereafter prepare a BNG Improvement Plan. The Plan must be approved by the Local Authority before works can lawfully start on site within an 8-week determination period.

The plan must provide the relevant data on the biodiversity for the site before and after the development. It will need to detail how the planned gains will be achieved and secured via appropriate stewardship and funding in the long term as part of a comprehensive strategy for the application site.

The Local Authority will want to see appropriate legal obligations to maintain any biodiversity gain for at least 30 years into the future from the date of consent. This could be in the form of a traditional S106 legal agreement. Alongside S106, an alternative legal agreement would be a ‘Conservation Covenant’. This is a long-term binding agreement made between a landowner and a responsible body such as a Local Authority or a Conservation Charity. These covenants will run with the land, creating binding targets and obligations on whoever buys or inherits the land.

For landowners (many of whom will be farmers), this represents an opportunity to create more income from unprofitable areas of land, but there is a clear downside in that the land will be locked up as “improvement plan land” for at least 30 years.

The critical implications for promoters such as Summix are the additional costs of meeting the legislation and the time it takes to properly prepare the baseline evidence and thereafter the BNG improvement plan. The costs will largely be professional ecological inputs surveying the sites, establishing the baseline data and thereafter formulating an improvement plan using the relevant metrics. The legal costs will relate to the S106 or covenants and stewardship arrangements.

Not all the sites being promoted by Summix are freehold sites. Some will inevitably be either Option Agreements or Promotion Agreements and in many cases, these will consist of historic contracts that may require re-negotiation to facilitate and fund the additional technical ecological and legal work associated with addressing the BNG requirements. This is particularly an issue for the consideration of very substantial developments, such as new settlements, where the area of land to be assessed and managed may be several hundred hectares in area. Taking one Summix case study at Worcestershire Parkway, the area of land to be assessed is circa 600ha as below:

There will inevitably be sites moving forwards where achieving the relevant BNG percentage and its associated mitigation results in a viability challenge for the scheme. Given achieving the BNG is a statutory requirement i.e. law, this may mean some difficult decisions over other more flexible policy requirements such as affordable housing or other infrastructure requirements that may need to flex as part of an overall planning balance. Given the BNG plan also needs approval from the relevant Local Authority and sign off within 8 weeks, this may not always be timely depending on the resources available to the relevant authority at the time of submission.

It remains to be seen how much information Local Plan Inspectors will seek on BNG aspects of strategic allocations in advance of applications being prepared and submitted. It feels likely where viability and delivery are being examined or contested at EIP that a level of this work will be needed at an earlier stage of the planning process to enable robust demonstration of deliverability and soundness. Finding the appropriate level of work and thereafter BNG solutions will depend of course on the particular site, the site’s context, the Local Authority position and how far the relevant EIP Inspectors are seeking to explore technical and viable delivery for an allocation.

Whilst the BNG requirements and mitigation may appear challenging in some instances, the new rules are ultimately starting to be understood by the industry and assimilated into project planning. The initial teething problems which dominated the planning press at the start of 2024 are lessening (or maybe less interesting to the emerging Labour reforms). Given the requirements are aiming to prevent loss of species and habitats and improve them in the long term so that development can sympathetically integrate with the natural environment and deliver sustainable development. The concept must be accepted by all parties and embraced as the correct thing to do and from a Summix perspective the principle fully accords with the ESG aspirations and values we have identified as the responsible way in which to promote land and secure truly sustainable planning permissions that achieve high quality linked built and natural environments as part of a strong placemaking vision.

Peter Bateman - Planning Director Summix July 2024