Biodiversity Net Gain - LPA Over-reach

[LnP]

My wife and I have a planning application in the system which has been received and confirmed valid by the LPA. The application was made on our behalf by a planning consultant, who is very experienced and knows his stuff. As allowed by the regulations, we claimed exemption from having to demonstrate biodiversity net gain on the ground that it is a self build.

 

The LPA are concerned that we might be cheating and that it is not a self build. Initially they asked my wife and I for a letter saying we're building the house for ourselves and will live in it, which we did. In the meantime, they have decided as a matter of policy that all self builders claiming exemption from BNG will have to enter into a Unilateral Undertaking with the following terms:

• we have to pay their legal costs to execute the undertaking and they don't say how much that will be;
• if there is a mortgage, the mortgagee has to sign the undertaking as well;
• they will put a charge on our house;
• we cannot dispose of the property for 3 years.
• the only get out is that in the event of a "change in our circumstances", the council may "act reasonably" to release us.

 

I think this is outrageous over-reach on the part of the council and it raises all kinds of issues. What happens if my wife and I need to go into care and need to sell the house fund it? What happens if one of my children who does not live nearby has a problem with childcare and we decide to move closer to help? What happens if we die? What will mortgage companies make of this?

 

Anybody any thoughts or experiences on this?

 

Maybe we just swallow the ~£1500 for an ecologist to do the study and whatever the requirements are to achieve the 10% net gain. Our project is to demolish an existing 1960s bungalow, so the baseline will be low and things we would anyway have done will probably achieve the required gain.

 

Edited October 17 by LnP

[Conor]

I'd just adhere to the policy. It* was easy for us, replacing non-native trees with native, and a hedge instead of a fence. No ecologist, just a landscaping plan and a paragraph in the design statement. 

 

 

 

 

*I'm not actually sure we had to comply, so don't know if the LPA actually cared or not, we didn't get comments either way.

[Alan Ambrose]

Personally, I think it’s important LPAs (and other public institutions) stick to the ‘rules’ and not try to circumvent them.

This can’t be an official policy as there just are not that many self builds.

 

In the first instance, take the ‘policy’ issue up with councillors, head of LPA, MP etc?

 

 

 

Edited October 18 by Alan Ambrose

[LnP]

2 hours ago, Conor said:

I'd just adhere to the policy. It* was easy for us, replacing non-native trees with native, and a hedge instead of a fence. No ecologist, just a landscaping plan and a paragraph in the design statement. 

 

 

 

 

*I'm not actually sure we had to comply, so don't know if the LPA actually cared or not, we didn't get comments either way.

Not sure if you’re up to speed on this. It’s about new requirements which came into force April 2024 about getting an ecologist to assess how you will achieve 10% improvement in biodiversity. They have to use a very prescriptive scoring system. It’s not just about planting a few trees, although that might be all that’s required by the assessment. 

[Jilly]

£1.5k is a bargain, I spent £6k on a ecologist with all the associated surveys etc. We found one bat, which happily flew off, ignoring the accommodation provided. 

Edited October 18 by Jilly

[LnP]

2 hours ago, Alan Ambrose said:

Personally, I think it’s important LPAs (and other public institutions) stick to the ‘rules’ and not try to circumvent them.

This can’t be an official policy as there just are not that many self builds.

 

In the first instance, take the ‘policy’ issue up with councillors, head of LPA, MP etc?

 

 

 

Indeed. They’re just making this up as they go along. There’s no legal justification for what they’re doing. Good idea to take it up with local councillors 👏.

[LnP]

8 minutes ago, Jilly said:

£1.5k is a bargain, I spent £6k on a ecologist with all the associated surveys etc. We found one bat, which happily flew off, ignoring the accommodation provided. 

We’ve already had the bat survey which was money for old rope. This is another nonsensical professional fee. £1500 was just a guess btw. 

[Conor]

32 minutes ago, LnP said:

Not sure if you’re up to speed on this. It’s about new requirements which came into force April 2024 about getting an ecologist to assess how you will achieve 10% improvement in biodiversity. They have to use a very prescriptive scoring system. It’s not just about planting a few trees, although that might be all that’s required by the assessment. 

ahh, not us then. We're in a conservation area and part of the criteria was enhancing biodiversity, with no specific measures. I probably gave it more consideration than was needed!

[BigBub]

There is currently a concern amongst many LAs of applicants falsely claiming self-build status in order to avoid BNG. Most, but not all, LAs will require a s106 agreement to secure self-build against a planning application but if the applicant tries to change to a private market dwelling instead after than they can effectively circumvent BNG as it can only be required as a pre-commencement condition.

 

Out of curiosity, which Council are you dealing with and have they added the requirement for a Unilateral Undertaking (UU) to their validation checklist or to a Development Plan Document? If I was in your position I would raise a validation dispute and try to argue that a UU should not be required.

[Iceverge]

Can you just copy and paste a BNG statement from somewhere? 

 

I don't disagree with the principle of it. I disagree with paying an arm and a leg to get what must be a pretty genetic plan made out. 

[ToughButterCup]

Keep your eye on the prize: Planning Permission.

It's a nervy time, applying for permission. Hoops to jump through , walls to face-plant into, people being badly behaved, for ever rushing yourself and then having to wait for everyone else. Its a test of character.

 

Now is not the time to challenge the insolence of fortune.

 

That luxury comes on Appeal. Because if after you've been a good-boi and swallowed your medicine and played by their rools made up on the hoof or otherwise , they refuse permission and you appeal, then their actions will be put under scrutiny. 

 

What-ifs are not for now. Later.

Eye on the prize.

 

[Canski]

7 hours ago, Jilly said:

£1.5k is a bargain, I spent £6k on a ecologist with all the associated surveys etc. We found one bat, which happily flew off, ignoring the accommodation provided. 

£8 k for me up to now and not a single bat to divide the money into. A friend has just gone through the biodiversity route and he reckons it’s going to cost £23 k per house to get it through. 

[Alan Ambrose]

>>> There is currently a concern amongst many LAs of applicants falsely claiming self-build status in order to avoid BNG.

 

That's been said before and I don't think there's any basis for it. In fact I suggest it's complete nonsense. So, there's a bunch of developers in many LPAs (enough to warrant an actual policy for) who develop single dwellings, not as limited companies, and try to swindle their LPAs out of BNG? Yeah right, how many LPAs have more than a handful of self-builds every year? How many get sold before 3-years is up? The developers do the entire complex Everest-like self-build journey for the purpose of saving some BNG? And they sell before 3-years for this scam rather than for instance dying or divorcing? It would be easier and safer and more lucrative to be an internet scammer I think.

 

CIL has a whole mechanism to verify self-build status -- self-build mortgage, self-build VAT reclaim etc etc etc. Why would LPAs need another mechanism?

[Jilly]

It would be pretty easy to set up a list of native plants and trees akin to rewilding or set aside, which could be incorporated into the outside space. 
 

Edited October 18 by Jilly

[LnP]

8 hours ago, BigBub said:

There is currently a concern amongst many LAs of applicants falsely claiming self-build status in order to avoid BNG. Most, but not all, LAs will require a s106 agreement to secure self-build against a planning application but if the applicant tries to change to a private market dwelling instead after than they can effectively circumvent BNG as it can only be required as a pre-commencement condition.

 

Out of curiosity, which Council are you dealing with and have they added the requirement for a Unilateral Undertaking (UU) to their validation checklist or to a Development Plan Document? If I was in your position I would raise a validation dispute and try to argue that a UU should not be required.

It's Warrington. I'm attaching their proposed agreement. Our application was accepted as valid and they subsequently brought up the need to sign this UU. I'll discuss your suggestion with our planning consultant.

Self Build - draft UU26.9.24 - FORMATTED 16.10.2024 CLEAN (1).docx

[LnP]

8 hours ago, Iceverge said:

Can you just copy and paste a BNG statement from somewhere? 

 

No. For your particular site, you have to follow the Small Sites Metric scoring system prescribed in the guidance and use their spreadsheet, both available to download here.

[LnP]

7 hours ago, ToughButterCup said:

Keep your eye on the prize: Planning Permission.

It's a nervy time, applying for permission. Hoops to jump through , walls to face-plant into, people being badly behaved, for ever rushing yourself and then having to wait for everyone else. Its a test of character.

 

Now is not the time to challenge the insolence of fortune.

 

That luxury comes on Appeal. Because if after you've been a good-boi and swallowed your medicine and played by their rools made up on the hoof or otherwise , they refuse permission and you appeal, then their actions will be put under scrutiny. 

 

What-ifs are not for now. Later.

Eye on the prize.

 

I completely agree about keeping one's eye on the prize. The case officer has also raised concerns about our proposals which our planning consultant thinks are not valid. Nevertheless, we're prepared to make the requested changes. But signing this UU is not something you can appeal.  Once you've signed it you're committed. I'm not prepared to lumber myself and potentially my family with these onerous obligations which as far as I understand, the LA have no legal basis for imposing.

[LnP]

Just an update. Another client of my planning consultant has been told by his mortgagee they will not lend him the money if he signs the UU. Not surprising, since it would mean that if he defaults on the loan within three years, they couldn't repossess the house without the permission of the local authority. Since most self builders require mortgages, Warrington Borough Council's policy of requiring a UU effectively eliminates the possibility of self build for most people in Warrington, unless they do the BNG demonstration.

 

I spotted that there is a de minimis threshold specified in the Planning Practice Guidance. BNG is not required if the impact on the site is:

• Less than 25 m² of on-site habitat; and
• Less than 5 m of linear habitat (hedgerow)

In our case, the new house will be placed on the footprint of the existing house and its surrounding hard standing, so there is no impact on habitat and BNG should not be required. I've asked my planning consultant to try that one with the LPA.

Edited October 22 by LnP

[Canski]

what a crazy state of affairs this is. 

[Alan Ambrose]

>>> In the first instance, take the ‘policy’ issue up with councillors, head of LPA, MP etc?

 

If the kids are not playing nicely, then you need to take it up with their parents. Ask consultant to write to head of council etc asap, with the implicit threat that it'll be the the press next.