Most readers will be familiar with planning conditions that local planning authorities (LPAs) attach to planning permissions. Many planning conditions are imposed at the discretion of the LPA for the purpose of making the consented development acceptable in planning terms. They often relate to matters such as visual appearance, landscaping, or use – for example imposing an occupancy restriction on an agricultural dwelling. Some planning conditions are pre-commencement conditions and, where that is the case, it is important to discharge them in good time and, as the name suggests, before any development starts. Failure to do so can invalidate the whole planning consent.
Biodiversity gain conditions are statutory pre-commencement conditions and stipulate that development may not commence until a biodiversity gain plan has been approved by the LPA. A biodiversity gain plan is a document that shows how Biodiversity Net Gain (BNG) will be achieved and to provide evidence for BNG decisions. That will need to tie in with the initial BNG assessment that will have been submitted with the planning application and, depending on the nature of the proposals, will need to demonstrate the methodology for the creation of new habitats and, for larger schemes, will include a habitat management and monitoring plan (HMMP) to enable the LPA to satisfy itself that what has been proposed has been satisfactorily established and maintained.
If an LPA refuses or fails to determine a biodiversity gain plan, the developer may appeal to the Secretary of State. These appeals will be dealt with by the Planning Inspectorate in the same way as any other planning related appeals. They are subject to a strict time limit of 6 months from the date of refusal or, in the case of non-determination, within 6 months of the date the LPA should have determined the plan (i.e., unless a time extension was agreed in writing, 8 weeks beginning from the day after the date it was submitted).
Given that biodiversity gain conditions are statutory pre-commencement conditions, any development that takes place before the BNG plan has been approved will be unlawful.
Henry Buckpitt, our in-house ecologist, undertakes BNG assessments and can provide a biodiversity gain plan and, where required, a HMMP, to demonstrate compliance with the statutory requirements.
