Biodiversity net gain is a way of creating and improving biodiversity by requiring development to have a positive impact (‘net gain’) on biodiversity.
In England, biodiversity net gain is required under a statutory framework introduced by Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021). This statutory framework is referred to as ‘biodiversity net gain’ in Planning Practice Guidance to distinguish it from other or more general biodiversity gains.
Under the statutory framework for biodiversity net gain, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met (“the biodiversity gain condition”). This objective is for development to deliver at least a 10% increase in biodiversity value relative to the pre-development biodiversity value of the onsite habitat. This increase can be achieved through onsite biodiversity gains, registered offsite biodiversity gains or statutory biodiversity credits.
The biodiversity gain condition is a pre-commencement condition: once planning permission has been granted, a Biodiversity Gain Plan must be submitted and approved by the planning authority before commencement of the development.
The successful delivery of BNG and its core objectives requires effective monitoring and enforcement. Without this, there is a chance that BNG could become a tick-box exercise and fail to deliver promised gains.
Sections 2.6 to 2.12 and 2.16 of the Planning Contributions and Affordable Housing Supplementary Planning Document (SPD) 2022 contain advice on Section 106 requirements and monitoring costs for ecological monitoring, including biodiversity net gain.
There are three key areas of BNG which require monitoring and potentially enforcing:
It will be the landowner or developer’s responsibility to ensure monitoring and reporting obligations are fulfilled, or adequately delegated to another body (with necessary funding). Therefore, landowners / developers will ultimately be responsible for monitoring the habitat enhancements themselves and delivery against the agreed Biodiversity Gain Plan and associated Habitat Management and Monitoring Plan.
For on-site gains, the landowner / developer will need to either manage and monitor the habitat creation / enhancement itself or arrange for an appropriate representative management company to undertake this.
For off-site gains, it is likely that the management and monitoring will be undertaken by the developer or by a third party off-site landowner. Proposals in this regard should be identified in the BNG Statement submitted as part of the planning application and will be secured via Section 106 legal agreement.
Landowners / developers will be required to submit monitoring reports to the council in line with the agreed Biodiversity Gain Plan, Habitat Management and Monitoring Plan and any relating conditions and/or Section 106 legal agreements.
For off-site delivery mechanisms, the landowner / off-site provider will be responsible for monitoring the habitat enhancements themselves and delivery against the agreed Biodiversity Gain Plan and associated Habitat Management and Monitoring Plan. Where the intention is to secure the off-site delivery mechanism with the council through an overarching Section 106 legal agreement, proposals should be identified in the associated Biodiversity Gain Plan. Landowners / off-site providers will be required to submit monitoring reports to the council in line with the agreed Biodiversity Gain Plan, Habitat Management and Monitoring Plan and any relating Section 106 legal agreements.
Torbay council has responsibilities in relation to monitoring and enforcement of triggers and compliance with planning conditions and Section 106 legal agreements relating to development sites. Torbay council will also monitor and where appropriate enforce in relation to triggers and compliance with Section 106 legal agreements relating to off-site delivery mechanisms where it is a party to them.
Where an off-site delivery mechanism is secured with another party (e.g. a Responsible Body via a conservation covenant, or another local authority or a neighbouring authority by either Section 106 legal agreement or conservation covenant), then the Responsible Body / other local authority party to that agreement will be responsible for monitoring triggers and compliance with the conservation covenant. The landowner / off-site provider will be responsible for managing and monitoring the habitat enhancements themselves and delivery against the agreed Biodiversity Gain Plan and associated Habitat Management and Monitoring Plan and submitting monitoring reports as required to the Responsible Body / other local authority. In this circumstance, the council will have no role in monitoring or enforcing compliance with the legal agreement or associated plans for the off-site delivery mechanism.
Torbay Council also has duties to report on BNG delivery under the Natural Environment and Rural Communities (NERC) Act 2006 as amended by the Environment Act 2021. The Act requires local authorities (and LPAs) to publish a Biodiversity Report by 1 January 2026 (and every 5 years after) containing: