BIODIVERSITY NET GAIN AND PLANNING OBLIGATIONS
Planning conditions and planning obligations relating to biodiversity are, nowadays, relatively common. However, it will probably be the case that current development control practices will need to be reviewed when the somewhat delayed Environment Bill finally obtains the Royal assent.
So far as development control is concerned, one of the
principal provisions in the Bill relates to a condition which will be attached
to the grant of most planning permissions as a matter of law. This statutory condition will provide that the
development in question cannot be commenced unless an ‘biodiversity management
plan’ is submitted to and approved by the local planning authority. One of the statutory requirements for such a
plan will be that it should show a net measurable gain in ‘biodiversity’ of 10%
when measured against the pre-development biodiversity value of the development
site.
The metric to be used is the Biodiversity Metric 0.2 which
is limited to producing calculations for the pre-development value of the
habitats to be affected by the development scheme and then comparing those
measurements to the corresponding measurements for the post-development
scenario. The Metric is limited to
habitats only, thus, on-site fauna are not surveyed and measured. Whilst the measurement of habitats is taken
as a rude proxy for the biodiversity value of the site, no attempt is made to measure
the actual wildlife which uses the relevant habitats. It, therefore, follows that the Biodiversity Metric
is simply one tool in the assessment of the considerations which relate to the
impact of the development on the biodiversity of the development as a whole.
It, also, follows that local planning authority will be
charged with considering the information on habitats which is derived from that
application of the Biodiversity Metric along with information derived from
other reports. For example, if the site
falls within the zone of influence for a European Site, then it might be the
case that an Appropriate Assessment must be carried out in accordance with the Habitats
Regulations. Also, if there is any indication of biodiversity value in
connection with the site, then one would expect the local planning authority to
require the carrying out of a preliminary survey and, if that survey shows
there to be the possibility of adverse impact on biodiversity, then, followed
up by a full survey report with recommendations.
The overall result of all of these complexities means that,
in many cases, the local planning authority will be faced with the need to
regulate the development so as to follow the mitigation hierarchy. This in turn may mean that it becomes
necessary to crystallise that regulation exercise into formal mechanisms, such
as planning conditions or planning obligations, which pull the various threads
together. In many cases the agreed
approach might be by way of ‘scheme conditions’, whereby the commencement of
development shall not take place unless and until schemes or plans relating to
biodiversity have been submitted to and approved by the local planning
authority.
British Standard 42020
British Standard 42020 is a well-established source of
guidance on these matters as a whole and, usefully, provides a set of model
planning conditions which may be adapted for use on a case-by-case basis. These model conditions provide a useful
starting point and benchmark for both local planning authority and developer
and, hopefully, limit the grounds for dissent between them.
Given the potential advent of the Environment Act, and the
need for a more sophisticated approach, it is relevant to ask whether these
objectives are better met by planning conditions or planning obligations or,
indeed, a mixture of the two. At first blush, BS42020 appears to favour the use
of planning conditions; however, this article suggests that conditions are not
necessarily the optimum solution for all cases.
Conditions or obligations ?
Paragraph 9.1.3 of BS42020 states:
“Planning obligations should only
be used where it is not possible to address unacceptable impacts through a
planning condition.”
Paragraph 9.4.3 adds:
9.4.3 Where planning conditions
are appropriate, these should be used in preference to planning obligations.
However, BS42020 does not discourage the use of planning
obligations entirely. Thus, paragraph 9.2.3
states:
“ . . .Where the decision-maker considers it more
appropriate, monitoring and land management may also be secured through a
planning obligation (see 9.4).”
Paragraph 11.1 states:
“ . . .While plans setting out proposals for
long-term management are often secured through planning conditions (see 9.2 and
D.4.5), the funding provisions may be more appropriately secured through
planning obligations (see 9.4). “
It is probably fair to say that, on a fair reading of the
document as a whole, the British Standard does not press the case for the use
of conditions over planning obligations in a forceful way.
It is necessary to examine national policy guidance on this
topic in order to see whether this can provide some degree of assistance. Unfortunately, the current national guidance
is less than clear.
In typically Delphic terms, the National Planning Practice
Guidance website states:
“Planning obligations, in the
form of section 106 agreements and section 278 agreements[1],
should only be used where it is not possible to address unacceptable impacts
through a planning condition.”
Paragraph: 004 Reference ID:
23b-004-20190901
No explanation is given as to the reasons for this mantra; but,
the more useful (now withdrawn) narrative to Circular 11/95 stated:
“12. It may be possible to
overcome a planning objection to a development proposal equally well by
imposing a condition on the planning permission or by entering into a planning
obligation under section 106 of the Act. The Secretaries of State consider that in such
cases the local planning authority should impose a condition rather than seek
to deal with the matter by means of a planning obligation. This is because the imposition of restrictions
by means of a planning obligation deprives the developer of the opportunity of
seeking to have the restrictions varied or removed by an application or appeal
under Part III of the Act if they are or become inappropriate or too onerous. “
The modern reality is that this objection is not a strong
one. As the Circular went on to say:
“It should be noted, however,
that section 106A of the Act allows a developer to apply to the local planning
authority to discharge or modify a planning obligation after the expiry of five
years after the obligation is entered into .
. . ..”
Furthermore, it is now commonplace to find that a developer
will approach the local planning authority with a request to modify a planning
obligation where the costs of discharging it will have an adverse impact on the
viability of his scheme. This, also,
presupposes that the planning obligation in question does not, in any event,
contain its own internal mechanisms for the variation of documents which have
been produced pursuant to the obligation. For example, it might be the case that a
planning obligation provides that a scheme shall be submitted to and approved
by the local planning authority before the development is commenced. However, it might equally be the case that the
obligation allows for the scheme to be varied from time to time in writing by
the parties. Accordingly, it would not
be necessary to invoke section 106A save in circumstances where the developer
is suggesting that the whole notion of an approved scheme should be dropped
from the obligation in toto. The vast
majority of cases, proposed modifications will relate to matters of detail such
as changes in housing mix, plot distribution et cetera.
Thus the policy case for preferring conditions is not
persuasive, particularly given the paucity of objective reasoning. The practical and logistical reasons for the
use of planning obligations in particular cases may, however, be compelling. This can be demonstrated by using some worked
examples from BS42020.
The Condition
The undergoing draft condition is
taken from BS42020 and sets out a mechanism for the provision of a
construction environmental management plan which should safeguard biodiversity
during the construction period:
D.4.1 Construction
environmental management plans (Biodiversity) – Condition
No development shall take
place (including demolition, ground works, vegetation clearance) until a construction
environmental management plan (CEMP: Biodiversity) has been submitted to and
approved in writing by the local planning authority. The CEMP (Biodiversity) shall include the
following.
a) Risk assessment of
potentially damaging construction activities.
b)
Identification of “biodiversity protection zones”.
c) Practical measures (both
physical measures and sensitive working practices) to avoid or reduce impacts
during construction (may be provided as a set of method statements).
d) The location and timing of
sensitive works to avoid harm to biodiversity features.
e) The times during
construction when specialist ecologists need to be present on site to oversee
works.
f) Responsible persons and
lines of communication.
g) The role and
responsibilities on site of an ecological clerk of works
(ECoW) or similarly competent person.
h) Use of protective fences,
exclusion barriers and warning signs.
The approved CEMP shall be
adhered to and implemented throughout the construction period strictly in
accordance with the approved details, unless otherwise agreed in writing by the
local planning authority.
Bullet b) refers to the identification of “biodiversity
protection zones” and the final sentence to construction period, but the
condition does not define them. This
raises a question relating to enforcement: see below.
Bullet b) refers to an “ecological clerk of works (ECoW)” or
similarly “competent person”. Whilst the
condition does not refer to BS42020, these terms are defined in it as follows:
·
“Ecological Clerk of Works” means “a person who
has the ecological qualifications, training, skills and relevant experience to
undertake appropriate monitoring and to provide specialist advice to
“development” site personnel on necessary working practices required to
i) safeguard ecological features on site and
ii) aid compliance with any
consents and relevant wildlife legislation related to the works.”
·
“Competent Person” means “a person who has the
qualifications, training, skills and experience relevant to the task being
undertaken.”
“Biodiversity Protection Zone” is not thus defined but could
be covered by “ . . .means as identified
on Drawing **************”.
Clearly, the position can be saved by adding these
definitions; however, one wonders how many local planning authorities will do
so.
This takes one to the matter of enforcement. Paragraph D.1 states:
“The conditions in this annex
have been formulated so that they provide the necessary level of precision to
enable all concerned with their implementation and enforcement to understand
exactly what is required in order to achieve compliance.”
The great difficulty here is that the gravamen of the
condition relates to the submission and approval of a document which has yet to
be created and so the document which will be enforced is not the condition per
se but that resultant document. Thus the integrity of the condition will turn on the
precision of the emergent CEMP (Biodiversity). Those versed in these matters will be aware
that documents such as CEMPs are rarely drafted with an eye to being tested in
the courts.
If the local planning authority issues an enforcement notice
or a breach of condition notice, then the requirements of the scheme which was
produced pursuant to the condition must be clearly shown and the alleged breach
must be demonstrated to the criminal burden of proof. If an enforcement notice then the same issues
will arise on any appeal, albeit in front of an Inspector and after the
consumption of time and money.
Measures such as fines are of little moment if the
responsible party is insolvent or has been dissolved. The old, but wise, legal maxim is “never sue
a man of straw” is apt in this connection.
If the object of the exercise includes some form of financial security
for long-term management, then the local planning authority should be
considering mechanisms such as bonds or guarantees before the grant of planning
permission, instead of ‘kicking the can up the road’ by way of a scheme
condition.
Perhaps more importantly, in reality, there is the question
of settling bona fide disputes as to the proposed content of the CEMP
(Biodiversity). If a planning condition
is used, then an appeal can be filed pursuant to section 78 **** of the 1990
Act. This gives rise to two
problems. First, the time expended,
delays caused and costs incurred as a result of the appeal process. Secondly, there is no guarantee that the
Inspector assigned to the appeal will be an ecologist.
The Obligation
The undergoing draft condition is also taken from BS42020
and sets out a mechanism for the provision of a Landscape and Ecological Management
Plan[2],
which should govern the post-completion biodiversity matters.
D.4.5 Landscape and ecological management plans
(LEMPs) – Condition
(Also referred to as a Habitat or
Biodiversity Management Plan)
A landscape and ecological
management plan (LEMP) shall be submitted to, and be approved in writing by,
the local planning authority prior [… to the commencement or occupation …]
of the development [or specified phase of development]. The content of the LEMP shall include the
following.
a) Description and evaluation of
features to be managed.
b) Ecological trends and
constraints on site that might influence management.
c) Aims and objectives of
management.
d) Appropriate management options
for achieving aims and objectives.
e) Prescriptions for management
actions.
f) Preparation of a work schedule
(including an annual work plan capable of being rolled forward over a five-year
period).
g) Details of the body or organisation
responsible for implementation of the plan.
h) Ongoing monitoring and
remedial measures.
The LEMP shall also include
details of the legal and funding mechanism(s) by which the long-term
implementation of the plan will be secured by the developer with the management
body(ies) responsible for its delivery.
The plan shall also set out (where
the results from monitoring show that conservation aims and objectives of the
LEMP are not being met) how contingencies and/or remedial action will be
identified, agreed and implemented so that the development still delivers the
fully functioning biodiversity objectives of the originally approved scheme.
The approved plan will be
implemented in accordance with the approved details.
This can be converted into a format suitable for use in a
planning obligation as follows:
10.Landscape
and Ecological Management Plan (LEMP)
10.1 The Development shall not be Commenced (and
demolition, ground works and vegetation clearance shall not be carried out or
started) unless and until a Landscape and Ecological Management Plan (“LEMP”)
has been submitted to and approved in writing by the Council. The LEMP shall include the following:
a) A
description of the biodiversity aims and objectives of the LEMP [ . .
including the biodiversity net gain to
be achieved by reference to the Biodiversity Metric 0.2 . . .. ]
b) A description and evaluation of features to be created,
enhanced and managed [ ….including habitat creation and ongoing management
for invertebrates, amphibians, reptiles, birds, bats . .
.]
c) Ecological
trends and constraints on site that might influence management.
d)A strategy
for identifying and managing invasive non-native species.
e) Aims and
objectives of management.
f)
Appropriate management options for achieving aims and objectives.
g)
Prescriptions for management actions.
h)
Preparation of a work schedule (including an annual work plan capable of being
rolled forward over a [ *****] -year period).
i) Details of
the body or organisation responsible for implementation of the plan.
j) Ongoing
monitoring and remedial measures.
10.2 The LEMP
shall include details of the legal and funding mechanism(s) by which the
long-term implementation of the plan will be secured by the developer with the
management body(ies) responsible for its delivery.[3]
10.3 The LEMP
shall set out (where the results from monitoring show that conservation aims and objectives of the LEMP are not
being met) how contingencies and/or remedial action will be identified, agreed
and implemented so that the Development still delivers the fully functioning
biodiversity objectives of the originally approved LEMP.
10.4 The approved LEMP will be implemented in
accordance with the approved details.
10.5. The
approved LEMP may, from time to time, be varied in writing by agreement between
the Council and the Owner and any dispute as to any proposed variation may be
referred to an Expert for determination pursuant to Clause ***.
Dealing first with the matter of resolving any disputes over
the content of the proposed LEMP, the planning agreement should include bespoke
dispute resolution clauses which require any dispute to be referred to an
independent expert for determination.
The expert will be suitably qualified in the relevant discipline and
will work to a stipulated timetable, as will the parties to the dispute.
As to the Circular 11/95 concern about flexibility, this is
met by the proviso which allows for variations by agreement from time to time. Clause 10.5 above allows for an iterative
approach which may evolve the relevant document as the scheme matures. It is not possible to reliably add a similar ‘tail-piece’
to a planning condition along the lines of this clause,
thus the parties are left to use of the cumbersome variation mechanism in
section 73 of the 1990 Act. Ergo, not only is Circular 11/95 met, but also, it
is met by a bespoke and more efficient mechanism.
Importantly, a planning obligation can provide for long-term
management by tying the biodiversity clause into any provisions which allow for
the creation of a management company.
Such management schemes are now commonplace in relation to on-site open
space, SUDS and so it makes sense to integrate the management of biodiversity
into them.
Turning to enforcement, section 106 allows for a suite of
enforcement strategies which are not available via a condition. These include not only ‘step in rights’ but
also the use of injunctions.
Importantly, it allows for the use of bonding or other security
mechanisms to ensure that ongoing management requirements can continue
notwithstanding the fate of the original developer, insolvency or otherwise.
Conclusion
It is arguable that planning obligations are, perhaps, more
suitable than planning conditions when one is dealing with large schemes. The
scheme will be, normally, accompanied by a relatively sophisticated planning
obligation which will contain clauses relating to the ongoing management of the
site and which should be integrated and coordinated with management clauses in
respect of biodiversity. A planning obligation should provide enough
flexibility to allow for an iterative approach to the inevitable changes which
occur as the scheme evolves. Planning conditions are, simply, too
unsophisticated to achieve these objectives. The use of planning conditions
only would, however, be acceptable where the scheme is a small one or has very
little impact on ecology. It is, therefore, a matter of choice on a
case-by-case basis and there is little to suggest that planning conditions
should, as a matter of course, be preferred to planning obligations.
[1] En
passant, the reference to Section 278 Agreements makes no sense
whatsoever. They have to do with
carrying out works on the highway (usually outside the site and on land outside
the control of the developer) and, therefore, provide for the necessary licence
to carry out the works, the specifications for the works and for financial
security etc. None of these being remotely relevant to planning conditions and
are, certainly, not “planning obligations”.
One is left to wonder as to the author of this text !
[2] I
prefer “Biodiversity Management Plan” because the ‘landscape’ side is somewhat
elusive.
[3]
Arguably, the better place for this detail is in the planning obligation
itself. That is, the matter being
settled at the outset rather than being left to the future. If it is proposed that the approach is via a
bond, then it is better that the matter is addressed sooner rather than later.
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