Laura Czapski, Legal Director in our Agriculture and Rural Land team, considers the requirements for off-site BNG and the opportunities that that may present to farmers and landowners.
There has been discussion over recent years about the impact of the provisions of the Environment Act 2021 which make it mandatory for land developers to deliver Biodiversity Net Gain (BNG) of at least 10% for development sites in England. In summary, this means that every developer must be able to show that the natural habitat will be enhanced by the proposed development. The percentage increase required is set by each individual Council but must be a minimum of 10%.
When at least 10% BNG cannot be achieved on site, developers must look to secure biodiversity units off-site, which can be done by purchasing the required units from other landowners or by purchasing biodiversity credits from the Government. The ability for developers to purchase off-site biodiversity units provides an exciting opportunity for landowners to create what is sometimes called “natural capital”; however, this process is still new, and it is prudent to fully consider the steps required to provide off-site BNG before investing in it.
To provide off-site BNG landowners should:
- Survey the current habitat and consider options to achieve BNG using the biodiversity metric (available via the Government website);
- Prepare a Habitat Management and Monitoring Plan (HMMP) setting out how you intend to create and enhance the habitat for BNG over the next 30 years (or more). Bear in mind that you will need to have the funds available to continue to complete the works, maintain the habitat and to cover costs for monitoring your compliance with the HMMP over this period;
- Agree your HMMP with the local planning authority or a responsible body and enter into a S.106 Agreement or conservation covenant setting out your obligations for the off-site BNG. This will likely include covenants to comply with the HMMP, register your biodiversity units on the Biodiversity Gain Site Register, and pay annual monitoring costs to the local planning authority or responsible body. The obligations will bind the site so that they will pass to new landowners when the property is sold or transferred. British Standard BS8683:2021 sets out standards for the design and implementation of BNG.
- Sell the registered biodiversity units to developers on the open market to allow them to achieve their required BNG for their development.
- Continue to comply with the HMMP for the site until the end of the agreed period.
In order to correctly follow the process above, landowners should take advice from ecology consultants in preparing their HMMP and from legal advisers in agreeing the terms of a s.106 Agreement or conservation covenant.
Our Agriculture and Rural Land team have experience in advising landowners in relation to their S.106 Agreements and conservation covenants for off-site BNG, and arrangements for the sale (and purchase) of units of BNG. Please contact Hazel Eccles, head of the Agriculture and Rural Land team, if you are seeking legal advice in this regard.
