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.

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[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.