PAS Biodiversity Net Gain Legal Agreement & Planning Condition Templates

An LPA can arrange and manage payments as it sees fit. The annual or regularised schedule suggested in the template is just one example of how monitoring payments can be organised. Some LPAs may prefer a one-off fee that accounts for inflation at the outset, rather than reviewing payments annually. However, LPAs should consider that a single lump sum, even if adjusted for anticipated inflation, carries the risk of underestimating future inflation or changes in cost structures, which could result in insufficient funds for effective monitoring.

On-site significant biodiversity net gain can be secured by condition. In the same way a landscape and ecological management plan can be secured by condition, a habitat management and monitoring plan (other plans could be used) can also be secured by condition. The HMMP itself can specify the monitoring to be undertaken and set out how long the works need to be maintained (and how they will be maintained). 

While you can secure onsite BNG by s106 obligation, the PPG advises to overcome planning objections by condition instead of planning obligations where possible. Our template resources for onsite BNG are drafted to secure BNG by condition to reflect the PPG's advice. Our template agreements (the Offsite and Habitat Bank agreements) can secure biodiversity net gain that would be located outside of the application boundary. 

The offsite template should be used, and the site must be registered on the Biodiversity Gain Site Register.

If the Council is party to the s106 agreement securing the offsite units, it can rely on the step-in rights or rely on its general powers to enforce planning obligations. Please note that the site intending to supply the off-site units should be registered on the gain site register.

Payments for a council to monitor activities under a s106 legal agreement are often exclusive of VAT (it is generally good approach to state whether sums in the agreement are exclusive or inclusive) because these services are typically considered part of the council's regulatory functions rather than commercial activities. As such, they may fall outside the scope of VAT or be exempt under specific tax rules that apply to public bodies performing statutory duties. This ensures that councils can recover their costs without the additional burden of VAT.

It is not a 'requirement', the only legal requirement is in reg 122(2A), but it certainly makes sense to have your approach, requirements and processes set out somewhere and regularly reviewed. This includes your fee setting methodology (e.g. what are you factoring into 'cost'). fees should be set at a level to cover costs (i.e. no margin for profit is allowed'). Some LPAs are including this information in a Supplementary Planning Document (SPD): 

• Hertsmere Borough Council - Biodiversity Net Gain SPD
• Buckinghamshire Council - Biodiversity Net Gain SPD
• Nottinghamshire County Council - Biodiversity Net Gain SPD

Yes. It is a legal obligation imposed by a local authority, registered in the Local Land Charges Register, and binding on future landowners.  

The Condition Template only requires a HMMP, or its equivalent, to be submitted prior to commencing development. For offsite BNG, the Offsite and Habitat Bank Templates do require an agreed HMMP. If a developer does not want to secure offsite enhancements when consent is granted, it can use the Habitat Bank Template to secure the works offsite.

Offsite units cannot be secured by condition. The template condition only secures onsite BNG. The deemed condition ensures that permission is granted on the assumption that a Biodiversity Gain Plan is submitted and approved before development starts. The deemed condition does not secure the delivery of habitat creation and enhancement works – an additional condition (such as the onsite template condition) is needed. If the Biodiversity Gain Plan relies on offsite biodiversity units, these will need to be registered (and must be secured by legal agreement).

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Dentons PAS BNG - Updates and NEW template phased developments (April 2025).pptx 

The use of Planning Conditions PPG advises on whether it is possible to use a condition to require an applicant to enter into a planning obligation (see Paragraph: 010 Reference ID: 21a-010-20190723).In consideration of the PPG, decision makers should consider any planning obligations (such as the payment of a monitoring contribution) before granting planning permission. 

We have created the condition template to set out that the developer has to achieve what is set out in the biodiversity gain plan. The gain plan is just informational; there's nothing in statute that actually secures the delivery of what you set out in that plan.

The LPA must be satisfied that the 10% BNG requirement will be met to be able to approve the gain plan. So there should be a sufficient condition or planning obligation that requires what is set out in the gain plan to be delivered.  The planning obligation or condition should set out a plan to deliver the BNG, e.g. a Habitat Management and Monitoring Plan (HMMP), which will provide the detail that will be relied upon.

The S106 agreement on-site template can be used to secure a contribution at the appropriate trigger - whether that be all up front via one agreement or for each phase. Each approach will be different depending on how the developer and LPA agree on things.    

Under the Town and Country Planning Act, Schedule 7A, an LPA must be satisfied that the overall biodiversity gain objective will be achieved for the overall and phased gain plan; i.e. that 10% will be achieved for the development as a whole. There isn’t any guidance yet on how far a developer can/cannot push the BNG towards the later phases of development. It is entirely legally possible that (for example) a development has six phases and that the BNG requirement is all delivered in the 6th phase. Keeping in mind the statutory duty that the LPA needs to be satisfied that the biodiversity gain objective is going to be achieved.

Under statute, there's nothing that requires you to go back and amend the overall biodiversity gain plan at each phase. However, in the template options, we've included a condition that you can impose that requires that to happen. One of the reasons for this is discussed above, and the LPA is satisfied that the overall biodiversity gain plan will be achieved. PAS thinks it is helpful to update the overall biodiversity gain plan as it changes; however, the phase biodiversity gain plan template has a space to explain how the gain plan is changing the overall position as submitted in the overall biodiversity gain plan.  As long as an LPA receives the information they need and can collate it all together to understand the site-wide strategy for BNG, it will help them meet their statutory obligations.

We’d expect a developer to purchase off-site units or statutory biodiversity credits at the discharge of each phase plan. (A developer can do this when submitting the overall biodiversity gain plan, but that plan is indicative.) To approve the phase biodiversity gain plan and discharge the statutory condition, the LPA should look at the register and check that the offsite BNG has been allocated to development. This is necessary as the LPA needs to be satisfied that the requisite level of BNG is being delivered for that phase, such that the overall 10% BNG will be met for the site as a whole.  

Where different phases of a development provide varying proportions of the overall BNG, it is possible for an early phase to under-deliver, not deliver any BNG or even create a deficit, e.g. due to degradation on site, with the expectation that later phases will over-deliver to compensate. When a gain plan is submitted for such an early phase showing less than 10% gain, this could trigger a red flag in the metric, but that situation is both possible and likely. It is unclear whether this triggers the same type of alert as a trading rules violation. The key consideration is whether the site-wide objective remains on track; if the LPA is satisfied that the overall project will meet or exceed the required 10% BNG, then accepting a metric that temporarily shows a deficit is considered acceptable.  

It is possible that phased development is never fully completed, so if some phases don't produce BNG, that might be OK as long as the overall objective is going to be met. If there is a significant amount of degradation at the front end, then the LPA should be seeking comfort to ensure that the later phases can come forward.

If a later phase of a development is expected to deliver more than 10% BNG to compensate for earlier phases, a common question is whether that obligation still applies if the developer sells the land. The answer is that the planning obligation runs with the land; this is a fundamental principle. So, the overall BNG requirement remains in place regardless of ownership. A new developer would not simply be entitled to deliver only 10%; they would be bound by the existing obligation tied to the site.  

Some developers are front-ending all of the BNG at the outset because then the maintenance period is triggered as soon as those works are completed. So, you can structure incentives into the conditions to make sure that's coming forward.  

Every phased development will have a different BNG strategy. The delivery of BNG is not going to be consistent across all phases, so additional information and comfort that the objective is going to be achieved and that the development will hit 10% site-wide is important.

It is important to note that there are additional requirements to take into account if there are irreplaceable habitats on site, and the PAS templates are not designed to meet these requirements. The specific regime for irreplaceable habitat sits within its own statutory instrument for onsite BNG. The phased regime sits within the modification amendments regulations, so you have to look at both places, depending on whether it's non-phased or phased development. These regimes are triggered if there is any irreplaceable habitat within the application boundary.  

Many of the rules relating to irreplaceable habitat are rooted in how you're going to create the 10% BNG and how you would compensate for loss, which is usually on a bespoke basis. Where irreplaceable habitats are retained, it may trigger additional requirements, and we wonder whether a developer would include it in their red line if they do not intend to do anything to it.

Some applicants are using land within their ‘blue line boundary’ to deliver off-site BNG units, i.e. land owned or controlled by the applicant that is adjacent to or near the main development site. The habitat bank template can be used to secure blue line land, as it allows for 'blue-edged land' to be included. However, using this approach typically requires two S106 agreements, one for the development itself and one for the habitat bank. The off-site agreement template was created to provide an alternative that enables everything to be secured within a single S106 agreement, simplifying the process.