FCo Rural Estates Newsletter Spring 2022 - Flipbook - Page 8
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egal agreements for
biodiversity net gain
After much toing and froing the Environment Act 2021 (Act) finally
received Royal Assent at the end of 2021. The biodiversity net gain
(BNG) sections may not be in force until 2023 and regulations will
add important detail, but our thinking is developing on the legal
agreements that may be required to deliver BNG.
Paul Krafft
BNG key aspects
Once the Act is in force all planning permissions (including national infrastructure
projects) must deliver a 10 per cent gain in ‘biodiversity value’.
The gain can be provided in three ways, individually or in aggregate:
•
on-site habitat improvements (within the red line of the development area),
•
off-site habitat improvements (on land outside the red line development area, for
example a few miles away), and
•
biodiversity credits (paying a sum to the planning authority in a similar way to a
section 106 agreement).
Once delivered, the biodiversity works must be maintained for 30 years (maintenance
period) (albeit the length may change under regulations).
Legal agreements
As BNG will be agreed as part of the planning application process, the local planning
authorities will influence the form of the agreement (or, for complicated schemes,
multiple agreements) to secure habitat improvements. Biodiversity credits should be
simpler to deal with as no long-term commitments are likely to be required. Here are
some of the terms a landowner may need to negotiate.
Parties
The simplest agreements may involve just you and the local planning authority but the
developer will often need to join, potentially with the tenant, a funder and any broker who
has brought the parties together.
Type of agreement
The Act envisages securing the on-site habitat enhancements for the duration of the
maintenance period by means of a planning condition, a planning obligation or a
conservation covenant.
Conservation covenants were mooted years ago as a way of making positive covenants
run forever and they have been brought back to life by the Act. A landowner will be able
to give permanent or time-fixed covenants (registered as local land charges to bind
successors) to conservation organisations or public authorities to do certain works of
public good. At least initially, local authorities may prefer to use section 106 agreements
which they know and understand. If so, for off-site works planning authorities may seek
works in their own jurisdiction to avoid the practical issues of having to deal with a
second authority.
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Rural Estates Newsletter
Spring 2022
