BNG Condition

[Fred F]

Hi everyone,

 

First post alert!
 

I’ve recently received permission for a self build on a piece of brownfield land. There is a BNG condition and I’m not 100% sure how to discharge it. I thought self-builders were exempt from BNG but my LPA seems to be taking a different view (which I suppose is their prerogative).

I would really love to avoid entering into a S106 if possible, especially as the condition mentions perpetuity as the duration, which seems rather unreasonable since the national guidance is for 30 years. My site is mostly hardstanding so the baseline is very low – there are two small trees (which we intend to keep) plus some grass/weeds. The baseline is 0.13 units.

Do you think I could argue that presenting my BNG plan should be sufficient to discharge the condition without requiring a S106 or conservation covenant due to: a) being a self-builder who could be exempted under national guidance; plus b) with the baseline being so low, any reasonable domestic garden should easily achieve 10% gain (and in fact my landscaping plan achieves 60% due to the anticipated planting of a few more small trees)?

Any guidance is appreciated. I have already entered one S106 with my LPA due to not being able to meet net zero which cost me £800 in their legal fees and a further £500 for them to monitor it. I’d rather avoid additional costs on BNG, especially if monitoring is required into perpetuity (how much would that even cost?!).

Thanks,

Fred.

For reference, here is the exact wording: No development above slab level shall commence until a Biodiversity Net Gain Plan based on the net gain information dated [XXX], that details how the habitats on the site will be created, established, managed, and monitored in perpetuity, has been submitted to and approved in writing by the Local Planning Authority. The Biodiversity Net Gain Plan shall thereafter be implemented.

[garrymartin]

My understanding is as yours - self-builders meeting appropriate criteria are exempt. I'd point your LPA to this guidance;

 

https://www.gov.uk/guidance/biodiversity-net-gain-exempt-developments

Self-build and custom build applications

An exemption applies to this type of development when it meets all the following conditions:   

• consists of no more than 9 dwellings 
• on a site that has an area no larger than 0.5 hectares    
• consists exclusively of dwellings that are self-build or custom housebuilding as defined in section 1(A1) of the Self-build and Custom Housebuilding Act 2015

[Fred F]

Thanks Garry. Since the approval has already been issued with this condition, would the right course of action be a S73 application to have the condition removed?

[saveasteading]

"Submitted to and approved by the LA".

So just do that. The more complete and scientific, the less chance they'll have a consultant look again it and demand that you need another consultant.

Make a check list for their convenience and make sure you deal with them all.

[garrymartin]

17 minutes ago, Fred F said:

Thanks Garry. Since the approval has already been issued with this condition, would the right course of action be a S73 application to have the condition removed?

I'm by no means an expert in this area, but that's my understanding. Section 73 application to have the condition removed due to the development being exempt. But I'd say speak to the LPA, point them to the guidance on exempt developments, and see what they advise as the most appropriate course of action to remove the condition.

[Temp]

Discuss this with the planners. It might be you just need to ask for the condition to be discharged on the grounds it is exempt citing the Act @garrymartin mentioned.

 

If they fail to discharge or remove the condition I believe you can appeal the condition on the grounds its unenforceable. But beware of the deadline to file an appeal.

[Fred F]

Thank you all for the kind responses! I'll speak to the planners and see what they say. Fingers crossed it is straightforward.

[Alan Ambrose]

@Fred F - I'm wondering what your outcome was?

[Fred F]

On 25/10/2024 at 13:56, Alan Ambrose said:

@Fred F - I'm wondering what your outcome was?

Sorry to take so long to follow up!

 

The planning officer advised me to make a S73 application to have the condition removed. I happened to need to do one anyway due to some tweaks to the design which in my view were pretty minor but had already been knocked back in an NMA. So I did the S73 and after 8 weeks of hearing nothing was told that because my original application did not tick the self build box (an oversight of my original architect) I would need to submit a fresh FULL application because a S73 coils

not change the type of development. Obviously I didn’t want to do this so decided to just discharge the BNG condition. 
 

Fortunately discharging the condition was surprisingly easy. I just sent a landscaping map showing where I planned to plant the trees and that I would keep some existing trees. This was deemed sufficient. 
 

So a bit of a headache but all ended up fine!

 

Now going through building control and hope to get started in the new year!