Changing red line mid-application, off-site BNG

[Drellingore]

Does anyone know the implications of updating a site plan to change the red line in a planning proposal currently awaiting determination?

 

It turns out that I instructed our ecologists to use a slightly larger area of our plot to calculate the BNG than the architects used on the site plan. The planners have quite rightly spotted this discrepancy, and so I think I've got three options:

 

1. Enlarge the red line on the site plan
2. Recalculate the BNG for the reduced red line
3. Register the difference between the two as 'off-site' mitigation

 

#1 sounds like the least effort, but I don't know if that might invalidate all the work done on the determination process thus far - will consultees need to be consulted again? #2 will give unfavourable results and means paying for all the BNG stuff to be done again. I'm not sure of the implications of #3. Any ideas?

I seem to recall someone saying on here that BNG requirements are excused for householder developments? This is two buildings (one residential dwelling; the second building is connected via a link and we're already asking for a condition to prevent separate disposal of it), and it's not the house we're living in. Plus the National Landscapes (FKA AONB) people want 20% BNG in the area. Maybe I could try the approach of "yes, there's a discrepancy, but it's not a deal-breaker so let's leave it as-is."

[garrymartin]

24 minutes ago, Drellingore said:

#1 sounds like the least effort, but I don't know if that might invalidate all the work done on the determination process thus far - will consultees need to be consulted again?

My understanding is that any change to the red line plan would restart the process.

[mjc55]

We have had a similar, if not quite the same, experience recently.  After we bought our plot we found that the red line was in the wrong place.  If you want to read more than have a look in this thread.

 

The plot already had OPP but when we submitted the reserved matters approval application we put in the corrected location plan.  This was turned down straight away as it didn't match the location plan in the OPP.

 

Subsequently we have submitted a new planning application with the corrected location plan.

 

However, my understanding - and that is all it is - I am sure others will be along to confirm or reject my thought process, is that the planners aren't particularly bothered about this as long as you don't try and change it part way through.

 

Do you need to update it at this stage?  After all, they would not get involved if things changed at a later stage.  

 

Obviously the issue does need sorting at some point but I wouldn't bother if you didn't have to.

[Drellingore]

30 minutes ago, garrymartin said:

My understanding is that any change to the red line plan would restart the process.

 

See, I say things like this to the missus, and she gives me the "how high did you score on that autism test again?" look 😂 That was my expectation too, so although it's not the answer I'd like, I feel less alone for thinking it!

[garrymartin]

Just now, Drellingore said:

See, I say things like this to the missus, and she gives me the "how high did you score on that autism test again?" look 😂 That was my expectation too, so although it's not the answer I'd like, I feel less alone for thinking it!

It makes perfect logical sense really. If you enlarged the red line during the process, consultees who may have thought "that won't affect me" or "that won't impact on x" based on the original plan might well feel aggrieved. Also, fees for some applications are based on the application site size, so enlarging it might mean more fees. Alternatively, as you're finding now, reducing it might have it's own problems. Natural England might have responded based on the original site and sizing for BNG and a smaller site may have different opportunities...

 

I can't see any situation where changing the red line plan would not warrant going back to consultees even if their responses remained the same.

[mjc55]

how much of a change is it?

 

[DevilDamo]

Your best bet would be no. 2. Amendments to red line boundaries would usually warrant a new application.

[Drellingore]

 

11 hours ago, mjc55 said:

how much of a change is it?

 

Apologies for the wildly-varying image sizes. You can kinda match the shapes by the bottom/south boundary.

 

Here's the ecology red line:

 

...and this is the smaller red line area from the site plan:

[Dave Jones]

does it matter as self builds are exempt?

[garrymartin]

1 hour ago, Dave Jones said:

does it matter as self builds are exempt?

It's a conversion I believe.

[joe90]

With my build/plot the red line was the residential curtalige and a blue line an agricultural field belonging to us, the ecological survey however included the field although we could not/want to build on it. Is this not your case with the blue line?

[mjc55]

2 hours ago, Drellingore said:

 

 

Apologies for the wildly-varying image sizes. You can kinda match the shapes by the bottom/south boundary.

 

Here's the ecology red line:

 

...and this is the smaller red line area from the site plan:

So the build is not going to affect the extra area so I would not change anything.

[Drellingore]

1 hour ago, garrymartin said:

It's a conversion I believe.

 

Correct! It might still count as "self-build" owing to it being the creation of a residential dwelling by the to-be occupier. I'm not sure though, and I haven't followed the thing about self-build being exempt from BNG. Anyone know where I should look?

 

1 hour ago, joe90 said:

With my build/plot the red line was the residential curtalige and a blue line an agricultural field belonging to us, the ecological survey however included the field although we could not/want to build on it. Is this not your case with the blue line?

 

3 minutes ago, mjc55 said:

So the build is not going to affect the extra area so I would not change anything.

 

Comments from the planning officer:

 

Quote

We need to understand whether the BNG will be delivered on-site or off-site as there is a requirement for the LPA to legally secure all offsite BNG for at least 30 years and for the offsite habitat to be registered on Natural England's Site Register. Off-site habitat is any area outside of the redline boundary, even if it is within the blue line. It would therefore be helpful if you could clarify the red line for the BNG and ensure that it is consistent with the site location plan. Please could you therefore provide a revised biodiversity metric that clarifies the areas of baseline habitat within the redline boundary.

 

[mjc55]

Small-scale self-build and custom build development of no more than 9 dwellings and on a site which has an area no larger than 0.5 hectares is exempt from BNG. Larger scale outline applications should be dealt with in the same way as phased development. See the BNG PPG for more information.

 

From Biodiversity Net Gain FAQs - Frequently Asked Questions

[garrymartin]

Is it a Class Q? That also benefits from the BNG exemption...

 

Also, when did you put your application in? Was it validated before 2nd April 2024?

 

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

[TommoUK]

if you get the red line wrong, and as a result inadvertantly include land outside your ownership, the application is technically invalid (unless you served a section 13 notice on the other owners at application stage)

[garrymartin]

3 minutes ago, TommoUK said:

if you get the red line wrong, and as a result inadvertantly include land outside your ownership, the application is technically invalid (unless you served a section 13 notice on the other owners at application stage)

Is that true if you have a right of way over an access road? I've included the access road in my red line plan (as you should do) but have not notified the owner as I am not "developing" that part of the red line plan, I have an existing right of way to use it...

[TommoUK]

yes. you have an easement or a prescriptive right you don't own the land. technically you need to serve notice on the owners.  its only an issue if someone wants to put a spanner in the works   

[mjc55]

8 minutes ago, TommoUK said:

if you get the red line wrong, and as a result inadvertantly include land outside your ownership, the application is technically invalid (unless you served a section 13 notice on the other owners at application stage)

I do not disagree with that statement but purely because I din't know.

 

Can you say from what position you are making it?

 

You do not actually have to own a plot to put in a planning application on it!

[TommoUK]

correct. but you do have to serve notice on all 'owners' of land included in the red line. so if the red line includes a right of way and you don't own it, you need to serve notice on the owner.  

[garrymartin]

2 hours ago, TommoUK said:

yes. you have an easement or a prescriptive right you don't own the land. technically you need to serve notice on the owners.  its only an issue if someone wants to put a spanner in the works   

I need to complete two more "notice 1" forms and amend my Certificate B then. Good job my application hasn't been validated yet... Thanks @TommoUK

[Drellingore]

4 hours ago, mjc55 said:

Small-scale self-build and custom build development of no more than 9 dwellings and on a site which has an area no larger than 0.5 hectares is exempt from BNG.

 

Ooh, interesting! The smaller red line is only 0.33ha; the larger red line for the ecology is 0.62ha.

 

3 hours ago, garrymartin said:

Is it a Class Q?

 

Nope, it's a non-designated heritage asset in a National Landscape, so I don't think permitted development rights exist. That said I had previously believed that permitted development rights were invalid in AONBs/NLs by default, and I never found a source for that, so it could just be folklore?

 

3 hours ago, garrymartin said:

Was it validated before 2nd April 2024?

 

Sadly not, t'was done in June.

 

3 hours ago, TommoUK said:

if you get the red line wrong, and as a result inadvertantly include land outside your ownership, the application is technically invalid

 

Ooh, that's good to know! Thankfully in our case that's one of the few oversights I've not yet made.

[TommoUK]

the correct ownership certificate will depend on whether you know the other owners' names and addresses. I guess a lot of the time this stuff doesn't get picked up.  just be mindful though if someone has an axe to grind and wants to make life difficult they might as a planning permission can be overturned retrosepctively if the LPA granting the P/P acted unlawfully (ie. validated the application when it was invalid)

[Drellingore]

@mjc55 Thanks for pointing that out, I think it might be the answer here. I've emailed the planning officer to point this out, and ask 'can we just disregard it entirely, and save a lot of time and effort on both sides'. I know they're massively over-worked so hopefully this line of thinking will appeal to them.

 

Then all I've got to do is deal with the Environment Agency who are objecting on the grounds that we haven't supplied a drainage strategy - despite the previous application getting approved without one, and despite us having a permit that we were going to mention when we got around to supplying a drainage strategy.

To paraphrase Dana White: "every day shit will happen, and I will deal with it" 😆 The obstacle becomes the way, and all that!

[Drellingore]

Update on this front: our annexe is described in the application as an optional holiday let, and the LPA have concluded that this means the BNG exemption doesn't apply. The legislation doesn't explicitly handle this case so it's a matter of interpretation, and probably not worth quibbling over.