“This article discusses issues around biodiversity net gain (BNG) that have arisen in a recent planning application that involved potential non-compliance with or a challenge to a BNG condition”, says Brian Dinnis of Acorn Rural Property Consultants.
“The common exemptions from BNG are developments that fall below the de minimis threshold, householder applications and self-build or custom build dwellings. Each of those has a statutory definition and there is usually no difficulty in agreeing with a Local Planning Authority (LPA) when a development is exempt. We have, however, recently had a case where the LPA has decided that a temporary agricultural worker’s dwelling falls outside the self-build exemption because it is a temporary and not a permanent dwelling. We have therefore considered how an applicant may be able to challenge that decision”, explains Dinnis.
“A BNG condition is a statutory condition and, as a matter of planning practice guidance a LPA does not include the BNG condition in the list of planning conditions in the decision notice. Instead, the decision notice includes an informative note referring to the BNG condition, which requires a Biodiversity Gain Plan (BGP) to be submitted and approved by the LPA before the commencement of the development. Commencing the development without first submitting and obtaining approval for the BGP would be a breach of planning control and, because it is both a statutory and a pre-commencement condition, that would be a breach of planning control that could invalidate the planning consent with the result that the development would be unlawful”, continues Dinnis.
“Unlike a normal planning condition, where there is disagreement with the LPA about whether a development is BNG exempt or about the content of a BGP there is no mechanism to challenge the LPA by making an application to remove or modify the condition. Further if an LPA takes enforcement action, it is highly likely that it would serve a breach of condition notice (BCN), against which there is no right of appeal. In these circumstances, the only route available would be to apply to the court for a judicial review which, in most cases, would be a sledge hammer to crack a nut. However, given that the failure to comply with a BCN is a criminal offence, anyone who finds themselves in that position would either have to comply with a condition that they consider should not apply or make an application to the court,” concludes Dinnis.
