Discharging the Biodiversity Net Gain Plan Condition (BNG)

When a development is subject to Biodiversity Net Gain provisions, Tendring District Council will impose a planning condition on the decision notice.  If you find the condition has been imposed there are many options available.  

You are encouraged to discuss your plans for BNG with us as soon as possible especially given the need to ensure the BNG is retained for a minimum of 30 years.  

You are not advised to simply submit a discharge of condition application for BNG without suitable preparation and understanding of the requirements to ensure BNG objectives are met.  

For the Biodiversity Gain Plan requirements, please refer to Town and Country Planning Act 1990, SCHEDULE 7A amended by the Environment Act Sch 14 as amended by The Biodiversity Gain (Town and Country Planning) Modifications and Amendments (England) Regulations 2024 with reference to both paragraphs 14 and 15.  Please see link.  

https://www.legislation.gov.uk/ukpga/2021/30/schedule/14/enacted

In summary, the Biodiversity Net Gain (BNG) plan must achieve a minimum biodiversity net gain of 10% and should typically include the following:

- Steps taken or to be taken to minimise adverse effects of the development on the biodiversity of the onsite habitat and any other habitat.

- Pre-development and post-development biodiversity assessments of the onsite habitat.

- Allocation of any registered offsite biodiversity gain to the development and its biodiversity value in relation to the development.

- Details of any biodiversity credits purchased for the development.

- Plans for maintaining and securing the net gain on and/or off site for at least 30 years after completion of the development.

The Local Authority will ensure the submitted details meet the requirements of the Town and Country Planning Act 1990 as amended, Environment Act as amended, associated legalisation and guidance.

Ways to achieve 10% BNG may include:

1. Enhancement and restoring biodiversity on-site (within the red line boundary of a development site).
2. If proposals can only achieve part of their BNG on-site, they can deliver through a mixture of on-site and off-site. Developers can either make off-site biodiversity gains on their own land outside the development site or buy off-site biodiversity units on the market as close as possible to the site.
3. If developers cannot achieve on-site or off-site BNG, they must buy statutory biodiversity credits from the government. This must be a last resort. The government will use the revenue to invest in habitat creation in England.  

The Local Authority is responsible for ensuring that the biodiversity gain objective is achieved, whether it be onsite, offsite, or through the purchase of credits, and that it is secured by legal agreement as necessary.  It is essential to highlight that planning conditions operate within a strict timeframe. Therefore, any legal agreements required to secure the biodiversity gain must be completed prior to the consideration of the planning condition.

The Local Authority must decide whether development will result in significant gains of habitat enhancement through BNG, relative to the biodiversity value before development.

The Local Authority defines the following developments as ‘significant’ for BNG purposes:

Significant (for BNG) shall apply to all Major development, and/or any development that includes the following:-

- Creation of green roofs

- New native woodlands and mixed native scrub, orchards and hedgerows (Greater than 5 trees and/or 20 metres)

- Wildflower meadows and areas of tussocky grassland more than 100 sq metres

The Council reserves the right to add further additions to what is considered significant in relation to any legalisation or case law as it sees necessary.

A legal agreement is required to accompany the application for discharging a BNG condition for any application falling within this category

IF YOUR DEVELOPMENT FALLS WITHIN THIS DEFINITION OF ‘SIGNIFICANT’, YOU SHOULD NOT SUBMIT YOUR APPLICATION TO DISCHARGE THE BNG CONDITION OF YOUR PLANNING CONSENT UNTIL YOU HAVE A COMPLETED LEGAL AGREEMENT TO SECURE BIODIVERSITY GAIN, OR UNTIL YOU CAN PROVIDE PROOF OF STATUTORY BIODIVERSITY CREDITS PURCHASED.  

THE COMPLETED LEGAL AGREEMENT, OR PROOF OF STATUTORY BIODIVERSITY CREDITS PURCHASED (WHICHEVER IS APPLICABLE) MUST BE SUBMITTED ALONGSIDE THE DISCHARGE OF CONDITION APPLICATION.

Failure to comply with this requirement may result in the refusal of the condition with regard to Town and Country Planning Act 1990, SCHEDULE 7A 15 (2) e.

The process that should be followed to obtain the legal agreement ahead of your discharge of condition submission can be viewed via this link: Section 106 Process.

IF YOUR APPLICATION DOES NOT FALL WITHIN THE ‘SIGNIFICANT’ CATEGORY THEN YOU CAN DISCHARGE YOUR CONDITION WITHOUT THE NEED FOR A LEGAL AGREEMENT, BUT THE BIODIVERSITY GAIN PLAN MUST STILL BE PROVIDED.