biodiversity Net Gain Exemption and LPA conditions!

[Lincolnshire Ian]

We are going through the final (painful) struggles to get planning permission for a demolition and self-build project.

We are exempt from biodiversity net gain requirements because we are self-builders, we are recognised as such by the LA so all should be good.

EXCEPT we have received a Unilateral Understanding (contract) from the LA in relation to the BNG exception for us to sign, which includes a requirement for us to live in the house for 3 years after completion.

Now, we hope to be living in this house we have sweating blood over for decades, never mind three years, but there isn't a way to discharge this liability in the contract if we are obliged to sell (what if we die, and my daughter wants to sell my house, or I die and my wife wants to downsize).

We have challenged this with the LA solicitor, but after a bit of googling it seems that this as this is new, and happens so infrequently that the LA solicitors are having to make up the rules as they go along!

Has anyone else come across this, or has a strategy that could work with convincing the LA solicitor to relax a little!

Thanks

 

[nod]

It’s a new one on me 

It seems totally unreasonable 

The same conditions as a CIL 

Brake them and you simply pay the liability 

 

I hate the term Forever Home 

As you rightly point out No one knows what’s around the corner 

[Mr Punter]

Why do the planners care how long you live there?  Dickheads.

[SBMS]

To be fair to the planners there is some logic here. This is down to a number of cases where planners had passed plans to ‘self builders’ that exempt BNG only for the self builder to sell the plot to a developer who then benefit from the BNG exemption. 
 

When we were going through approval this was thrown up at last stage, due to national policy changes, and our planner wasn’t sure how to deal with it.  Their issue was that in the event we sold the plot with planning they would have no recourse to impose BNG on the site. Our consultant suggested a term similar to the above. 
 

If you think about it it, the condition isn’t aiming to keep you in the house for 3 Years - it’s to allow the council, in the event you sell the plot to a non self builder, to reimpose the BNG condition on the new owner/developer.  In this instance what would happen would be the condition would be un-met, developer would go back in for a variation of condition and council would impose the BNG requirements. 

[Lincolnshire Ian]

45 minutes ago, SBMS said:

In this instance what would happen would be the condition would be un-met, developer would go back in for a variation of condition and council would impose the BNG requirements. 

The difference is that with CIL the mechanism to break the agreement is written into legislation, but it isn't for BNG. 

[SBMS]

29 minutes ago, Lincolnshire Ian said:

The difference is that with CIL the mechanism to break the agreement is written into legislation, but it isn't for BNG. 

CIL isn’t as related to planning as BNG is, in that planning permission does not condition CIL payments in any way. CIL is therefore not intrinsically linked to planning permission and is a separate tax function administered by a separate department. 
 

BNG on the other hand is administered through planning policy and conditions for planning permission - so the mechanism for ‘breaking’ the self build exemption really has to be dealt with via conditions. You not remaining in a property for 3 years for the purpose of CIL doesn’t invalidate your planning permission. The same isn’t true for a BNG self builder exemption, hence why it falls to the planning department to condition it. 

[Alan Ambrose]

Seems a lot of LPAs are paranoid that lots of self-builders are faking it and don’t intend to self-build at all. (Their fear makes no sense to me at all.) Hence the hokey methods to try and plug the torrent gushing through this potential raging hole in the BNG dyke.

[SBMS]

13 hours ago, Alan Ambrose said:

Seems a lot of LPAs are paranoid that lots of self-builders are faking it and don’t intend to self-build at all. (Their fear makes no sense to me at all.) Hence the hokey methods to try and plug the torrent gushing through this potential raging hole in the BNG dyke.

Has happened quite a bit round us.  Planning passed for "2x self builds" only for then a developer to build them...

[Timedout]

The biodiversity net gain is now mandatory for all sites in the central Lincolnshire area that comprises three of the districts. We live in West Lindsey and discovered this a couple of week ago. They also require Passiv Haus whatever on new applications. No small site exemption.
 

[SBMS]

4 hours ago, Timedout said:

The biodiversity net gain is now mandatory for all sites in the central Lincolnshire area that comprises three of the districts. We live in West Lindsey and discovered this a couple of week ago. They also require Passiv Haus whatever on new applications. No small site exemption.
 

Are you sure they ‘require passiv haus’? I doubt they would require a modelled house scheme are you sure they don’t just have ancillary guidance targeting better than building regs levels of airtightness, wall u values etc? And even still is this mandatory or just guidance for a case officer to assess?

 

and are you sure on BNG as I thought this was central planning policy - not delegated with defra setting out the self build exemption authority?

[Lincolnshire Ian]

On 07/02/2025 at 15:02, Timedout said:

The biodiversity net gain is now mandatory for all sites in the central Lincolnshire area that comprises three of the districts. We live in West Lindsey and discovered this a couple of week ago. They also require Passiv Haus whatever on new applications. No small site exemption.
 

We live in South Holland, which is in a neighbouring "three district" blended area. Planning has been a 18 week nightmare with BNG exemption being the final hurdle. We signed a Unilateral Undertaking (contract with the council) to agree to living in the house for at least 12 months.

The LA solicitors are swimming in the dark with this as its new so it's worth pushing back on suggestions that seem a bit mad.

[Lincolnshire Ian]

On 07/02/2025 at 15:02, Timedout said:

The biodiversity net gain is now mandatory for all sites in the central Lincolnshire area that comprises three of the districts. We live in West Lindsey and discovered this a couple of week ago. They also require Passiv Haus whatever on new applications. No small site exemption.
 

A few more notes about Biodiversity Net Gain and exemption.

 

Whilst the BDNG applies to most new developments, there are some exemptions.

BNG Exemptions Regs 2024

8(1) the biodiversity gain planning conditions does not apply in relation to planning permission for development which –

(a)   Consists of no more than 9 dwellings;

(b)   is carried out on a site which has an area no larger than 0.5 hectares; and

(c)   consists exclusively of dwellings which are self-build  or are custom housebuilding.

8(2) in this regulation “self-build or custom housebuilding” has the sme meaning as in section 1(A1) of the Self-build and Custom Housebuilding Act 2015 (a)

Definition of Self-build and Custom Housebuilding Act 2015

“ In this Act “self-build and custom housebuilding” means the building or completion by

(a)   individuals,

(b)   associations of individuals, or persons working with or for individuals or associations of individuals of houses to be occupied as homes by those individuals.

 

When planning is granted the LA may ask you to enter in to a unilateral undertaking to the LA ( a promise made in a written agreement signed by you (with a witnessed signature i.e. a deed) . In the promise you confirm that you are doing the project as a self build.

The LA may insert a requirement that you have to occupy the development. You may be able to negotiate that there should be no separate occupation requirement as the need to occupy is already included in your part of the promise the build a self -build home which meets the definition of the 2015 Act. If the LA insist on a separate occupation clause, you may want to offer 12 months post practical completion. This coincides with your VAT reclaim period in any event.

Some LAs may try and insist on a three year occupation period. With it being a relatively new regulation, there is still a lot of confusion going on in the LAs. The requirement for a 3 year occupation (usually associated with a Community Infrastructure Levy exemption) does not come into it when dealing with biodiversity net gain exemptions.  

[Timedout]

Ref the above observations on my comment. These points were drawn to my attention by a West Lindsey planning officer a few weeks ago. I was seriously considering making an offer on a plot a few miles from my home but needed clarification on the current status as the existing consent expires in a few weeks. It was said that new full application would be needed but that the planning policy for the area required the NBG and an energy statement. I read up the policy and that’s where I found the requirements. There was no mention I could find regarding occupancy but I stopped reading at the words Passiv Haus.

With the cost of plots and construction, self-build here is a one way ticket to negative equity and there is a limit to how much negative we can swallow. Passiv Haus consultant are not getting an opportunity to make our losses any deeper. It may be different for those wanting a grand design gin palace but we are modest people with a long record of creating modest homes with very good energy performance using standard building materials and a lot of care and attention.
 

NBG would be simple. Just waste £1000 or so on a consultant and buy a nesting box. This is Lincolnshire and there is no biodiversity. If there was, the farmers would kill it. 
 

The policies are available on line should you wish to point out errors I have made in my interpretation. It did say no small site exemption. 
 

I do not believe that the authorities are interested in energy performance. The PH policy is just a cynical move designed to create a deterrent. I doubt they will impose it on the volume builders, just self build and small business. A bit like parking and turning in your own curtilage and all the other stuff the big builders never do.

[SBMS]

1 hour ago, Timedout said:

It did say no small site exemption. 

Small sites became eligible For BNG in April 2024. Small sites include sites of 1-9 properties. However, the self or custom build exemption still applies so you would not require BNG. If you have alternative policy please link to it but according to defra and west Lindsey’s own BNG guidance policy, your custom build is exempt. 
 

1 hour ago, Timedout said:

I stopped reading at the words passivhaus

You shouldn’t! You should have continued reading because… They do NOT require passivhaus. They have set in policy the following, that should be demonstrated via an energy statement:

 

 

Point 1 requires a net zero on electricity consumption. Point 2 requires, I would say, ambitious but not overly difficult or expensive to achieve space heating requirements. PH is 15kWh/m2. The policy I would say is poorly worded and I’d want a planning consultant’s view on whether 60kWh is a fallback for a single site self build. Your self build - if for a single site - would Probably meet these 35kWh requirement. It’s ambiguous and clearly targeted at multi dwelling sites due to the referencing of sites vs individual units.

 

There are exemptions to point 1 - eg if the building is overshadowed for example. Also, note that the local plan is really just bringing forward the proposals in the future home standard. Also, this type of requirement in policy is untested and the local plan sets out a series of situations in which an application doesn’t have to even meet these (read S7 in the local plan).
 

The references to passivhaus are simply to shortcut the planners having to assess an otherwise detailed energy statement as PH exceeds these targets. It is not mandated in policy though. 
 

It sounds like You’re making some decisions based on a local planner’s view of the policy. They will be biased and, possibly, misinformed. Engage a local planning consultant if you need a factual view of what your requirements are, but from

a cursory glance I don’t think your appraisal is correct. 

[SBMS]

2 hours ago, Timedout said:

NBG would be simple. Just waste £1000 or so on a consultant and buy a nesting box. This is Lincolnshire and there is no biodiversity. If there was, the farmers would kill it. 

Actually it wouldn’t be simple and would be more difficult and expensive to meet than the energy requirements. BNG does not work like you suggest either. It’s a highly technical assessment driven framework that determines exactly what net loss or gain there is. It’s not really something that can be ‘fudged’. Sure, some elements are open to interpretation - but £1000 and a nesting box is extremely wide of the mark!  However it is relatively easy to offset with offsite schemes if onsite offsetting is not possible (environment bank, wild capital and others). 

[Alan Ambrose]

If you asked a 5-year old to game BNG, wouldn’t they just tell you to ensure there is minimum B before you send in your planning application? Cut everything back to short grass etc?

[SBMS]

43 minutes ago, Alan Ambrose said:

If you asked a 5-year old to game BNG, wouldn’t they just tell you to ensure there is minimum B before you send in your planning application? Cut everything back to short grass etc?

It tends to be about the displacement of biodiversity from the building and works, so basically the loss of green spaces for driveway, garages, hard standing, and the house itself. I think they even now apply a percentage of expected future loss through sheds, permitted development etc! So quite hard to game it. Maybe tarmac or hardcore everything first!

[LnP]

Regarding how the obligations in the UU are enforced, when you sign the UU you’re agreeing to a charge being registered on the property. You won’t be able to sell your house until the charge is removed by the LA, either because 3 years have expired, or the LA have agreed to it being removed. The UU says they will look “reasonably” at requests if you need to sell within 3 years. You will anyway have to pay their legal fees to look at it (as well as having to pay their legal costs up front to put the UU in place). They hold all the cards.

 

Regarding the consequences of entering into a UU, you might not be able to get a mortgage on your self build. The charge will make it harder for the lender to sell the property if they have to foreclose.

 

Regarding gaming it and carrying out prior work to lower the baseline score, if they catch wind of that, they can force you to score it on the habitat before you made the changes.

LAs are unilaterally closing the door on the self build exemption which is allowed in the regulations - it’s regulatory over reach.

 

I’m wondering if it might be possible to do the BNG assessment yourself. The scoring is done in a spreadsheet and there’s guidance on how to do it. It doesn’t look particularly difficult. Has anybody tried that?

 

 

Edited February 9 by LnP

[SBMS]

22 minutes ago, LnP said:

LAs are unilaterally closing the door on the self build exemption which is allowed in the regulations - it’s regulatory over reach.

Have you seen this is any official policy, local plan or is it individual applications that are experiencing this?

[LnP]

19 hours ago, SBMS said:

Have you seen this is any official policy, local plan or is it individual applications that are experiencing this?

I don't have an answer to that just now, but will be meeting with our planning consultant in the next few days to discuss it. I'll reply when I have more information.