Under the BNG rules, the habitats that are enhanced and/or created need to be protected for at least 30 years. Whoever is responsible for creating these habitats and/or maintaining them has to report on progress of these habitats to a responsible body. These obligations can either be set out in a section 106 agreement, or in a Conservation Covenant.
Conservation Covenants are new type of legal deed that was created by the Environment Act. In short, they are private, voluntary agreements between landowners and a responsible body to fulfil conservation objectives. These are voluntary but legally binding and will be effective even if the land changes hands.
You can read more about conservation covenants here.
A full list of responsible bodies can be found here.
Typical things in a conservation covenant include:
Detailing that a certain area of land has to be held in a certain way for a certain number of years (to be specified)
Clauses that bind the landowner and any person who becomes a successor to the landowner.
Prohibition on certain things taking place on the land
Enforcement powers and remedies that can be sought in court.
Local planning authorities have broad powers to impose planning conditions and can, where appropriate, include additional conditions relating to the delivery of biodiversity net gain.
A planning condition can be used to secure significant onsite habitat enhancements which are required to be secured and maintained for at least 30 years under paragraph 9 of Schedule 7A. Other potential conditions could include monitoring and reporting arrangements. Planning conditions should be appropriately worded to ensure effective compliance and enforcement of biodiversity net gain.
It is not appropriate to use planning conditions to secure funding for delivering or monitoring biodiversity net gain. These should be secured through section 106 planning obligations where justified.
Local planning authorities can agree section 106 planning obligations to mitigate impacts of development including obligations relating to the delivery of significant onsite biodiversity enhancements, registered off-site biodiversity gains and the use of statutory credits.
Matters that could be covered in planning obligations include management and monitoring arrangements, dealing with excess net gains to be used for other developments, offsite gains and circumstances where credits can be used as a last resort. Where offsite gains are already registered and subject to a planning obligation or conservation covenant, it may not be necessary to tie them to development with another planning obligation.
Local planning authorities can charge a monitoring fee though section 106 planning obligations, to cover the cost of monitoring and reporting on delivery of that section 106 agreement.
Planning obligations should be appropriately worded to ensure effective compliance and enforcement of biodiversity net gain.
Local planning authorities are encouraged to use and publish standard forms and templates to assist with the process of agreeing planning obligations to support biodiversity net gain. These could include model agreements and clauses (including those already published by other bodies), that could be made publicly available to help with the planning application process. Any further information required by the local planning authority, or issues raised by the applicant regarding planning obligations, should be addressed at an early stage of the planning application process.