Agenda item

To seek the Cabinet’s agreement to adopt a policy statement on ‘Biodiversity Net Gain’ (BNG) which will serve as the Council’s interim corporate position on the subject, pending detailed consideration as part of the forthcoming Local Plan review. Having an interim policy will enable the Council to respond positively and constructively in its consideration of BNG as part of the planning process; and in the consideration of proposals to set up ‘Habitat Banks’ by Tendring landowners and, potentially, on Council-owned land.

That the Cabinet:-

1)     notes the contents of this report which, amongst other things, explains the Council’s obligations around Biodiversity Net Gain (BNG), the role of Habitat Banks and the potential consideration of Council-owned land for BNG purposes; 

2)     agrees that proposed ‘Policy on Biodiversity Net Gain (BNG)’ (attached as Appendix 1 to the Portfolio Holder’s report (A.1)) is adopted as the Council’s interim corporate position pending the outcome of the Local Plan review, for the purposes of dealing with matters relating to BNG;

3)     refers the aforementioned policy to the Planning Policy and Local Plan Committee for its consideration for inclusion in the Tendring District Local Plan as part of its current review;

4)     invites the Planning Committee, at its earliest convenience, to consider and determine how it will exercise its power in respect of Council decisions on entering into legal agreements with landowners under Section 106 of the Town and Country Planning for the purposes of setting up Habitat Banks, guided by the aforementioned policy and the advice of Officers – including the extent to which the Committee deems it appropriate for such decision-making powers to be delegated to Officers; and any arrangements for public consultation on specific proposals; and

5)     notes that the Portfolio Holder responsible for Housing and Planning in liaison with Officers will, in due course, consider and publish details of the fees to be charged to developers and landowners to cover the Council’s costs in respect of monitoring BNG in line with its statutory obligations.     

Cabinet considered a detailed report of the Housing and Planning Portfolio Holder (A.3), which sought its agreement to adopt a policy statement on ‘Biodiversity Net Gain’ (BNG) which would serve as the Council’s interim corporate position on the subject, pending detailed consideration as part of the forthcoming Local Plan review. Having an interim policy would enable the Council to respond positively and constructively in its consideration of BNG as part of the planning process; and in the consideration of proposals to set up ‘Habitat Banks’ by Tendring landowners and, potentially, on Council-owned land.

It was reported that Biodiversity Net Gain (BNG) was a legal requirement of the national planning system which had applied to most proposals for major development since February 2024 and most proposals for smaller developments since April 2024. It required developers to deliver a minimum 10% uplift in biodiversity (wildlife) value over and above what was present on site prior to development. In very simple terms, it was no longer just a requirement for development to minimise or mitigate its impact on wildlife; it must now, by law, bring about an improvement – a minimum 10% net increase in biodiversity habitat which was calculated, measured and monitored using a complex biodiversity metric set out in national guidance. 

Members were informed that, to achieve 10% BNG, development proposals were required to deliver as much of it as possible on the site that was being developed. Where it was not possible to achieve all the necessary BNG on-site, developers could create the necessary habitat off-site either on other land they controlled (which would be tied through a legal agreement on the grant of planning permission) or by purchasing ‘biodiversity units’ from a ‘Habitat Bank’ – i.e. a wildlife habitat set up and maintained by third-party landowners for the purposes of BNG and where units could be sold to developers on the open market. In the rare cases where on-site or off-site BNG provision was not possible, developers must – as a last resort – buy statutory biodiversity credits from the Government.   

Cabinet was made aware that in order to set up a Habitat Bank and lawfully enter the market for selling biodiversity units to developers, a landowner must register their site with Natural England – which first required them to either enter into a legal agreement with the local authority or a ‘conservation covenant’ with another responsible body recognised by Natural England. In doing so, the local authority (or other responsible body) took on a responsibility to monitor and enforce the obligations set out in any legal agreement.

Cabinet was advised that a number of landowners in Tendring had expressed a keen interest in setting up Habitat Banks and some had already carried out much of the preparatory work required for entering into a legal agreement with the Council, registering with Natural England and entering into the market for selling biodiversity units. However, like many local authorities, this Council had not been in a position to progress discussions with landowners about entering into the necessary legal agreements because Officers had needed time to research, consider and fully understand both the Council’s legal duties and implications for resources – particularly in relation to its responsibilities around monitoring.

Now that there was a better understanding of the requirements around BNG and the process for setting up Habitat Banks, Officers had designed a planning policy on BNG (attached as Appendix 1 to the Portfolio Holder’s report for Members’ consideration) which, in summary, covered the following:

·      the Council’s legal obligations to secure 10% BNG – without unnecessarily duplicating the detail of legislation of national guidance;

·      the ambition (which aligned with the ambition of Essex County Council) to increase the BNG requirement to 20% at an appropriate point in the future; and

·      the criteria under which the Council could be willing to enter into a s106 legal agreement with a landowner for the purpose of setting up Habitat Banks for registration with Natural England and the selling of BNG units to developers on the open market which:

o  reflected the benefit of expanding and connecting up existing protected wildlife habitats;

o  promoted a scale of site that could better foster the creation of viable habitats than smaller more vulnerable sites;

o  supported the objectives of the emerging Essex Local Nature Recovery Strategy (LNRS) and the locations identified for their opportunity for habitat creation in that strategy;

o  supported Local Plan policy e.g. strategic green gaps and protected open spaces, and avoiding Habitat Banks in locations that could prejudice the proposals and policies in the Local Plan; and

o  allowed the Council to establish Habitat Banks on its own land, in due course, allowing time to carry out due internal processes in relation to assets and Member approvals – without holding up the opportunity for third-party private landowners to progress Habitat Banks on their sites, to the benefit of wildlife in the District and the diversification of the rural economy.

It was reported that the Portfolio Holder’s intention was that the proposed policy was agreed by the Cabinet for referral to the Planning Policy and Local Plan Committee for its full consideration for inclusion in the Local Plan through the forthcoming review process; but that it be adopted, in the interim, as the Council’s corporate position on BNG which, amongst other things, would enable Officers to progress discussions with landowners about setting up and registering Habitat Banks in Tendring and negotiating the necessary legal agreements. It was also recommended that the Planning Committee be invited to give consideration to how it exercised its decision-making powers in respect of relevant legal agreements; the extent to which such powers were to be delegated, if at all, to Officers; and whether any public consultation arrangements should be put in place for the consideration of Habitat Bank proposals.

Being cognisant that in the absence of a clear local policy or position on the subject of Biodiversity Net Gain (BNG) or any published expectations or criteria for the consideration of proposals for Habitat Banks, the Council could only refer to legislation and guidance produced by the Government when dealing with planning proposals that had BNG requirements and proposals for Habitat Banks from Tendring landowners and that it was therefore difficult for Officers to have constructive conversations with landowners looking to set up Habitat Banks on the necessary content of legal agreements and associated expectations around monitoring fees – which was holding up the opportunity for local landowners to contribute towards BNG and enter into the market for biodiversity units to the benefit of the rural economy:-

It was moved by Councillor Baker, seconded by Councillor Smith and:-

RESOLVED that the Cabinet -

1)     notes the contents of this report which, amongst other things, explains the Council’s obligations around Biodiversity Net Gain (BNG), the role of Habitat Banks and the potential consideration of Council-owned land for BNG purposes; 

2)     agrees that proposed ‘Policy on Biodiversity Net Gain (BNG)’ (attached as Appendix 1 to the Portfolio Holder’s report (A.1)) is adopted as the Council’s interim corporate position pending the outcome of the Local Plan review, for the purposes of dealing with matters relating to BNG;

3)     refers the aforementioned policy to the Planning Policy and Local Plan Committee for its consideration for inclusion in the Tendring District Local Plan as part of its current review;

4)     invites the Planning Committee, at its earliest convenience, to consider and determine how it will exercise its power in respect of Council decisions on entering into legal agreements with landowners under Section 106 of the Town and Country Planning for the purposes of setting up Habitat Banks, guided by the aforementioned policy and the advice of Officers – including the extent to which the Committee deems it appropriate for such decision-making powers to be delegated to Officers; and any arrangements for public consultation on specific proposals; and

5)     notes that the Portfolio Holder responsible for Housing and Planning in liaison with Officers will, in due course, consider and publish details of the fees to be charged to developers and landowners to cover the Council’s costs in respect of monitoring BNG in line with its statutory obligations.