Legal requirements

Biodiversity Uplift

Where the Council deems that none of the exemptions apply, the applicant will be required to submit the documentation specified by the legislation to demonstrate sufficient BNG uplift. The Government's most recently endorsed (small-sites or standard) habitat metric must be used to demonstrate pre- and post-development habitat values. The legislation requires for any necessary BNG uplift to be provided either on-site, off-site, or a combination of the two. In the case of BNG uplift being provided off-site, this would also need to be covered by the documentation required under the legislation.

Biodiversity uplift is measured using biodiversity units (BU) through the creation of new habitats or enhancement of existing habitats. In the case of off-site provision, these can be bought through private markets. Note that the number of units required will depend on the location of the off-site biodiversity site, as the Government's metric deliberately applies spatial risk and strategic significance multipliers. These multipliers effectively reward sites that are closer to the application site, are within same Local Planning Authority (LPA) area, and/or within same National Character Area. They also reward chosen off-site habitats which are identified in Local Nature Recovery Strategies, Local Plans and/or other applicable strategies as being locally important. This means if one or both of the multipliers apply then the BU value is uplifted (essentially meaning fewer BUs must be purchased, thus meeting the 10% requirement becomes cheaper to the developer).

Biodiversity Gain Plans (Draft and Final)

Applicants will need to submit a Biodiversity Gain Plan (BGP) which accurately demonstrates how the necessary BNG uplift is to be achieved (either on- site, off-site or both). This must be submitted (assuming scheme approval) after the planning application has been approved, via a discharge of condition application. Note that although final versions of BGPs must be submitted after scheme approval, it is good practice for draft BGPs to be brought to the Council's attention during the assessment of an application. Indeed, there may be cases where the Council needs to understand how a scheme conforms to any policies on biodiversity applicable at the time, the biodiversity hierarchy, what extent a developer is proposing on-site versus off-site biodiversity provision, and the nature of any on-site provision, etc.

Legal Agreements and HMMPs

Applicants will also need to submit a legal agreement that demonstrates how they will maintain the habitat, who is responsible for creating or enhancing the habitats, and who is responsible for their maintenance, management and monitoring for at least a 30-year period.  Habitat Management and Monitoring Plans (HMMPs) can be used to cover this information either as integrated into the legal agreement (which may take the form of a section 106 agreement), or as self-standing. The legal agreement/HMMP needs to be agreed with the Council, who may subsequently utilise the specialist services of the Wildlife Trust) under the legislation to guarantee habitat delivery; unless the applicant has arranged a conservation covenant with a third party private habitat bank in which case other bodies (including some Wildlife Trusts or Natural England) can assume the role of a "responsible body".

Use of Planning Conditions

It should be noted that under the Regulations, the Council can only be in receipt of, and approve the contents of, the applicant's final Biodiversity Gain Plan (BGP) at least 1 day after approval of the planning scheme. In effect, this means that the Council must attach a standard pre-commencement condition to sign off a BGP where the content of the BGP is deemed acceptable.

Similarly, the Council will attach a pre-commencement condition requiring the submission to and approval of a suitable HMMP that is in accordance with the corresponding BGP for the site.

In both cases, the applicant can propose to enter into either a bilateral Section 106 agreement with the Council to guarantee the necessary uplift, and its subsequent monitoring and management, or demonstrate that they are subject to the requirements of an equivalent conservation covenant with some third party overseen by a responsible body.

Exemptions

There are some exemptions to the 10% BNG requirement set out in the legislation which can be found at - www.legislation.gov.uk/uksi/2024/47/contents/made