As planning and environmental requirements continue to evolve in the UK, developers must navigate a growing list of requirements to ensure projects are compliant with policy and legislation. Understanding how to secure Biodiversity Net Gain (BNG) is essential for those involved in property development or land use planning.
What is a Section 106 Agreement?
A Section 106 agreement (often referred to as a “s106”) is a legally binding agreement between a landowner and the local planning authority, also involving the mortgagee if the land is mortgaged. These agreements are used to mitigate the impacts of a development and to ensure it becomes acceptable in planning terms.
Typically, a Section 106 sets out obligations that the developer must fulfil. These often include financial contributions toward local infrastructure such as education and NHS services and provision of affordable homes and recreational spaces. The aim is to address the additional pressures that a new development may place on local amenities and services.
BNG can also be secured in a s106 agreement.
What is Biodiversity Net Gain?
As of February 12, 2024, Biodiversity Net Gain (also known as “BNG”) is a mandatory requirement for most new developments to ensure that there is a better quality of natural habitat once the development is built. There is a minimum statutory requirement to deliver a 10% increase in the BNG ‘metric’, ensuring that the development will increase biodiversity post-development.
The ’gain’ can be achieved by:
- delivery of BNG onsite;
- delivery of BNG offsite; or
- purchase of BNG credits.
How is BNG delivered through a s106?
An agreed method of securing BNG must be in place before the construction of a development begins. BNG can be provided onsite (usually secured by planning conditions), or through a conservation covenant, or alternatively via a s106 agreement.
A s106 agreement would usually secure the creation/enhancement of habitats in an area outside the red line boundary, this can include a 3rd party (but they will need to be a party to the s106 agreement).
The s106 may include the following terms:-
- Biodiversity Net Gain plan (how the 10%+ is to be achieved).
- Obligation to implement (and maintain) the BNG plan.
- Securing the management and maintenance of the land for a period of 30 years.
- Mortgagee’s consent.
- Monitoring costs.
- Phasing.
Why planning early matters
Given the legal and environmental implications, it’s essential to assess BNG requirements early in the planning process. Developers should evaluate:
- Whether the development triggers BNG obligations.
- Whether any exceptions apply.
- The most suitable method of delivering BNG (onsite, offsite, or credits).
Engaging with the local planning authority and Stephens Scown’s Planning team from the outset can help avoid delays and ensure a smoother path to planning approval.