biodiversity Net Gain Exemption and LPA conditions!

[LnP]

  On 20/03/2025 at 18:18, Benpointer said:

The utterly ridiculous aspect of all this is that we're going to be planting about 20 trees in our 0.85 acre plot which is currently concrete and grass - no hedges, no trees, no shrubs, nothing.

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@Benpointer Since you have plenty of space to add the 10% biodiversity points, you might be better off foregoing the self build exemption, with its associated costs and S106 restrictions. I’ve heard a habitat survey and assessment costs about £2k.

 

Its another irritating and unnecessary professional fee, but being pragmatic, maybe the BNG self build exemption is more trouble than it’s worth. 

[Benpointer]

  On 22/03/2025 at 20:55, LnP said:

@Benpointer Since you have plenty of space to add the 10% biodiversity points, you might be better off foregoing the self build exemption, with its associated costs and S106 restrictions. I’ve heard a habitat survey and assessment costs about £2k.

 

Its another irritating and unnecessary professional fee, but being pragmatic, maybe the BNG self build exemption is more trouble than it’s worth. 

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We've considered that but, it's all about timing now.  Will it take longer to draft, sign and deliver a S106 or to have a BNG report created and signed off by Environmental Services?  Who knows!

[kandgmitchell]

The s106 will be dealt with by the Council's legal department and the planners will be their "clients". Have you known lawyers to do anything quickly? I'd sort out the BNG and avoid the s106 altogether.

[Benpointer]

Update:  The Council's legal department have been in contact with our solicitors.  They state that:

 

"I understand that _____________________ are looking to take advantage of the self-build exemption from the Biodiversity Net Gain (BNG) regulations. I have been asked to put in place the paperwork to secure the necessary planning obligations.
 
Please note that that the Council have a standard Section 106 Agreement for this purpose and amendments will only be accepted on a site-specific basis.  I would be grateful if you could forward your clients evidence of title to the application site so that I can produce a draft for your comments and approval.
 
Your clients will be responsible for the Council’s legal fees in this matter for which I anticipate being in the region of £1000 (no VAT). I should be grateful to receive your undertaking to pay these fees, either on completion or within two months of written demand. The undertaking should apply irrespective of whether the matter proceeds to completion. I reserve the right to increase my fees should the matter become protracted or more complex.
 
Thank you and I look forward to hearing from you.“

 

So, to unpack that: it's a standard template that we can't change and they are going to rinse us for £1000 to put our names and the site address into that template.  The words 'robbery' and 'daylight' spring to mind.  

[Bancroft]

  On 20/03/2025 at 18:18, Benpointer said:

The utterly ridiculous aspect of all this is that we're going to be planting about 20 trees in our 0.85 acre plot which is currently concrete and grass - no hedges, no trees, no shrubs, nothing.

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Slightly off topic but relevant I think.

 

Our Planners started asking for us to update our BNG.

 

I got back in touch with the Environmental Specialist who did the original one and she responded:

 

I would be happy to recalculate the BNG for you however since I wrote the initial report the government have produced and then latterly updated, guidance which now confirms that BNG cannot be provided within private gardens. This includes all the hedges, trees, grassland etc. With regret I could not now write a report confirming BNG is achievable in a garden so you would need to secure offsite BNG.

 

As she's the expert I can only take her word for it.  But this does seem bonkers.  Seems like the new regs are being made to support multi-build developers and their mates who are setting up off-site biodiversity offset sites.

 

Luckily, when I went back to the planners and questioned their logic for a new report they caved in and signed off the Condition without needing a new one.

[LnP]

  On 28/03/2025 at 11:58, Bancroft said:

Slightly off topic but relevant I think.

 

Our Planners started asking for us to update our BNG.

 

I got back in touch with the Environmental Specialist who did the original one and she responded:

 

I would be happy to recalculate the BNG for you however since I wrote the initial report the government have produced and then latterly updated, guidance which now confirms that BNG cannot be provided within private gardens. This includes all the hedges, trees, grassland etc. With regret I could not now write a report confirming BNG is achievable in a garden so you would need to secure offsite BNG.

 

As she's the expert I can only take her word for it.  But this does seem bonkers.  Seems like the new regs are being made to support multi-build developers and their mates who are setting up off-site biodiversity offset sites.

 

Luckily, when I went back to the planners and questioned their logic for a new report they caved in and signed off the Condition without needing a new one.

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Is this because the BNG gains cannot be legally secured through a 30-year monitoring plan in a private garden?

 

@Benpointer, so what are you going to do? What conditions are in the proposed S106 agreement?

 

I'm more concerned about ecologists setting up biodiversity offset sites, because they on the one hand tell you how many points you have to buy and on the other sell you the points. A clear conflict of interest. This is a mess.

[Bancroft]

  On 28/03/2025 at 15:46, LnP said:

Is this because the BNG gains cannot be legally secured through a 30-year monitoring plan

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I have no idea; she didn't elucidate beyond what I quoted and the problem went away so I didn't enquire further.

 

I can't help thinking that the whole BNG saga is going the way of the nitrates fiasco and that, at some point in the future, it's all going to blow up when Joe Public realises what's going on.

 

As an example, we (the local village) used to have free access to a small river and water meadow here within the South Downs National Park.  People used to go there on sunny afternoons to picnic and have the occasional paddle in the stream.  It's out in the country so never any bother with bored 'Yoofs'.

 

Then, suddenly, the whole area was fenced off and signs went up.

 

Apparently, Biffa - out of the goodness of their heart and for no other reason than being a socially responsible company - had purchased the land in order to make it into a wildlife sanctuary.  To protect the wildlife this required them to fence off the area so that it wasn't disturbed.

 

Cue lots of unhappy people.

 

It wasn't until recently that I realised that this was probably just Biffa offsetting BNG as part of a planning application for a new waste site.

 

Now, multiply that by every new planning application being submitted across the UK (especially from the big developers) and suddenly we have a countryside that no-one has access to.

[Benpointer]

  On 28/03/2025 at 15:46, LnP said:

Is this because the BNG gains cannot be legally secured through a 30-year monitoring plan in a private garden?

 

@Benpointer, so what are you going to do? What conditions are in the proposed S106 agreement?

 

I'm more concerned about ecologists setting up biodiversity offset sites, because they on the one hand tell you how many points you have to buy and on the other sell you the points. A clear conflict of interest. This is a mess.

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We haven't seen the S106 yet but I am expecting it to stipulate that we must live in the house for at least 3 years after completion, presumably for some get-out clause in the event of the death or serious illness of one of us.   I will post on here as soon as we see it.

 

We intend to sign it if at all possible.  Had we known we would have to do so at the time we applied, we might have opted for a BNG.  Rather aggrieved that the goalposts were moved after our application went - I suspect that is challengeable in the courts but...  delays are the very last thing we want.

[kandgmitchell]

  On 28/03/2025 at 17:23, Benpointer said:

delays are the very last thing we want.

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Sadly this is the leverage that some planning authorities use to get their own way even if it is a bit doubtful legally......

[Alan Ambrose]

That’s because you’re on a mission, and they have all the time in the world. Those facts haven’t escaped them.

[Benpointer]

Update: we now have a draft Deed from the Council's legal team, which I attach if anyone is interested.  

 

Several things jump out to my non-legal eye:

1. There appears to be no 'get-out' for exceptional circumstances - we appear to have to continue to live in the house even if we die or it is demolished by a meteor or similar.
2. No mention of the sanction if we default.
3. I can't actually see what is to stop us selling the house before it is occupied and putting the buyer's name(s) in as occupiers under schedule b.

Anyway, we're probably just going to sign it and cough-up the £1000 in council legal fees for this marvellous contract.

self build unilateral undertaking - redacted.docFetching info...

[SBMS]

  On 04/04/2025 at 20:15, Benpointer said:

Update: we now have a draft Deed from the Council's legal team, which I attach if anyone is interested.  

 

Several things jump out to my non-legal eye:

1. There appears to be no 'get-out' for exceptional circumstances - we appear to have to continue to live in the house even if we die or it is demolished by a meteor or similar.
2. No mention of the sanction if we default.
3. I can't actually see what is to stop us selling the house before it is occupied and putting the buyer's name(s) in as occupiers under schedule b.

Anyway, we're probably just going to sign it and cough-up the £1000 in council legal fees for this marvellous contract.

self build unilateral undertaking - redacted.doc 74 kB · 1 download

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I wonder whether that deed has ever been tested as reasonable, appropriate or sufficient. For example - no timeframe for the inspection of the property by the council. No specified notice period so they could turn up when you’re in the bath. What happens

if You refuse the inspection. That clause is probably unreasonable and unenforceable in its current form. 

 

There isn’t a sanction if you default because this is a restrictive covenant deed. This means that, should You break the covenant, the council can apply to the court for an injunction to cease the breach. The purpose of this deed is most likely prevent the property sale; a buyer’s solicitor would find this deed and immediately realise You’re not in a position to legally sell.  However, it would be more difficult To enforce if you decided to rent the property. For example, the deed doesn’t define principal residence and whilst there’s a reasonable argument this is well understood, the deed doesn’t exhaustively define it. 
 

But fundamentally, your restrictive covenants are designed to prevent sale of the property within your restriction period so is unlikely

to be missed by a conveyancer if you did sell. 

[SBMS]

  On 04/04/2025 at 20:15, Benpointer said:

1. I can't actually see what is to stop us selling the house before it is occupied and putting the buyer's name(s) in as occupiers under schedule b.

 

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Clause b requires you to inform the council

of the occupiers before construction of the dwelling. That’s what prevents You selling it - you can’t build it before you’ve completed the deed to their satisfaction. Be careful you do this!

[Benpointer]

  On 04/04/2025 at 20:56, SBMS said:

Clause b requires you to inform the council

of the occupiers before construction of the dwelling. That’s what prevents You selling it - you can’t build it before you’ve completed the deed to their satisfaction. Be careful you do this!

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Yes, you're absolutely right - my mistake.  That's why I'd never make a successful lawyer!    

 

And yes we will make sure to satisfy this before we start work - thanks!

 

Since there is no CIL in our part of Dorset it would have been much better for us to opt for the non self-build route and have a BNG report done.  But this was not a requirement when the application went in - the goalposts have been moved.  To change course now would inevitably cost us many weeks delay.  

 

Feeling very aggrieved but we not going to kick up a fuss because we just want to get the PP signed off as quickly as possible.  😡

Edited yesterday at 08:34 by Benpointer

[SBMS]

  On 06/04/2025 at 08:34, Benpointer said:

Yes, you're absolutely right - my mistake.  That's why I'd never make a successful lawyer!    

 

And yes we will make sure to satisfy this before we start work - thanks!

 

Since there is no CIL in our part of Dorset it would have been much better for us to opt for the non self-build route and have a BNG report done.  But this was not a requirement when the application went in - the goalposts have been moved.  To change course now would inevitably cost us many weeks delay.  

 

Feeling very aggrieved but we not going to kick up a fuss because we just want to get the PP signed off as quickly as possible.  😡

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In a few months/when you’re building, this will be a distant memory

[LnP]

 

I think I posted Warrington's UU elsewhere, but here it is again. I'm not a lawyer, but a couple of differences I noticed:

• Warrington provide for the possibility that the self builder could be released from their obligations if their circumstances change. Unless I missed it, Dorset does not. The Warrington UU says:
  • "PROVIDED THAT the requirements in paragraphs 4 and 5 shall not apply in the event of a change of circumstances acknowledged by the Council in writing acting reasonably which prevents the Original Owner from Occupying and/or not Disposing of the relevant Dwelling within such three (3) year period."
• I'd be thinking about ways in which my circumstances might change, for example my place of employment changes, I lose my job and have to move house, I need to move closer to aged parents, I get sick and need to move into care, etc. It looks like the Dorset UU would prevent me from doing that.
• In the Dorset agreement, your self build has to continue to be your "sole or principal residence" for three years. Does this prevent you from owning a second or holiday home?

None of this is legally required by the Act or Regulations.

• The self build exemption is provided in The Biodiversity Gain Requirements (Exemptions) Regulations 2024. They very simply exempt self builders.
• And self builders are simply defined in the Self-build and Custom Housebuilding Act 2015, 

Local authorities are over-reaching their legal mandate. I continue to believe that the way they're implementing the self build exemption is outrageous.

Warrington Self Build - draft UU26.9.24 - FORMATTED 16.10.2024 CLEAN (1).docxFetching info...

[Alan Ambrose]

>>> the way they're implementing the self build exemption is outrageou

 

Yeah, agree. The LPA fear is apparently something to do with people ‘pretending’ to self-build, getting the exemption, and then maybe selling the plot to a developer. Doesn’t make much sense to me as this will, by definition, only be for one house, and surely wouldn’t happen that often, and they could probably just deal with it with a simple clause in the PP.

[kandgmitchell]

Mmmm, despite this being a UU I think I would push back a little perhaps giving Warrington's UU as an example and pointing out whilst you intend to live in the self-build, those situations in LnP's post could happen and where would you be then?

 

Well stuck in the self -build obvously......