Applying to discharge the national BNG condition - Public forum - Planning Advisory Service (PAS)

Great question, Cazzy.

I can't give a definitive answer, but the PPG advises:

Under the statutory framework for biodiversity net gain, subject to some exceptions, every grant of planning permission is deemed to have been granted subject to the condition that the biodiversity gain objective is met (“the biodiversity gain condition”). This objective is for development to deliver at least a 10% increase in biodiversity value relative to the pre-development biodiversity value of the onsite habitat. This increase can be achieved through onsite biodiversity gains, registered offsite biodiversity gains or statutory biodiversity credits.

The biodiversity gain condition is a pre-commencement condition: once planning permission has been granted, a Biodiversity Gain Plan must be submitted and approved by the planning authority before commencement of the development. There are exemptions and transitional arrangements which disapply the condition from certain planning permissions, as well as special modifications for planning permissions for phased development and the treatment of irreplaceable habitats.

I suggest one course of action would be to include the condition as a requirement on every permission and have it worded in such a manner that it requires either evidence to show the 10% gain is met, or that an exemption applies.

As the condition is a pre-comencement condition, I don't see why it is necessary to have any BNG information submitted with an application.  Of course for applicants that wish to submit BNG information, the condition could simply require them to deliver the gains set out in their submission, thus not requiring an unnecessary discharge application.

James

Hi James,

Thanks for taking the time to reply to my query, but I am nore sure I understand.

The BNG condition is imposed by national legislation and the LPA only put an informative on the decision notice which sets this out.

The standard national BNG condition requires a Biodiversity Gain Plan to be submitted and approved. So applicants will need to discharage it.

My question is regarding the process for doing this. Do they have to make a separate application 'in writing' (as stated by the PPG) or does this include that can it be added to a normal discharge of conditions application along with other pre-commencement conditions?

As far as I understand it, even if they submit information with their planning application, the national BNG condition still applies so they still need to discharge it. 

I agree that they will need to be additional BNG associated planning conditions imposed by the LPA on the decision notice (as well as the national BNG informative) as the statutory condition does not on its own secure compliance with the Biodiversity Gain Plan (and this is acknowledged and advised in the PAS BNG guidance).

However, I am specifically asking here about the process for discharging the statutory BNG condition.

Thanks

I'm confused now.

As far as I am aware, there is no specific wording for a standard national BNG condition.  Rather it simply requires a Biodiversity Gain Plan to be submitted and approved, prior to commencement.  If you add a note to this effect as an informative, I don't see that there is a process available to enable a discharge.  Rather than an informative, I presumed local authorities would have to write their own condition which required the submission of a Biodiversity Gain Plan (unless the development was exempt) which could be discharged.

I think the words confused and BNG go together perfectly James, I think everyone is at the moment!

As I understand it at present, when granting planning permission, Article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015) requires the decision notice to set out:

35.— (1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters—

(za) where planning permission is granted, the notice must include—

(i) information relating to the condition in paragraph 13 of Schedule 7A to the 1990 Act (biodiversity gain condition) including that there are exemptions, transitional arrangements and requirements relating to irreplaceable habitat,

(ii) information to note the effect of section 73(2D) of the 1990 Act (earlier biodiversity gain plan in relation to a previous planning permission regarded as approved for purposes of paragraph 13 of Schedule 7A),

(iii) details of the planning authority under paragraph 12(1) of Schedule 7A (biodiversity gain in England), and

(iv) where development is to proceed in phases and the modifications in Part 2 of the Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024 apply, a statement to that effect and to the effect that biodiversity gain plans are required before development may be begun and required before each phase of development may be begun;

It is therefore it is this legislation that requires the submission of the BG Plan and the decision notice should have an informative on it saying this. In fact the BNG PPG states that the LPA should not put a condition on:

Does a local planning authority have to impose the biodiversity gain condition when permission is granted?

Planning conditions are normally imposed on the grant of planning permission under section 70 (1) and section 72 of the Town and Country Planning Act 1990.  

By contrast, the biodiversity gain condition has its own separate statutory basis, as a planning condition under paragraph 13 of Schedule 7A of the Town and Country Planning Act 1990. The condition is deemed to apply to every planning permission granted for the development of land in England (unless exemptions or transitional provisions apply), and there are separate provisions governing the Biodiversity Gain Plan.

To ensure applicants are clear about this distinction, the local planning authority are strongly encouraged to not include the biodiversity gain condition, or the reasons for applying this, in the list of conditions imposed in the written notice when granting planning permission.

There is a separate requirement to provide information about the biodiversity gain condition. This information must be separate to the list of conditions on the decision notice.

There is an official suggested informative to cover this.

I know that such discharge applications 'must be made in writing' to the LPA, but it is whether they can be done as part of a normal application to discharge pre-commencement conditions, or have to be done separately, that is my question.

:-)