Squires Planning have recently acted for Harvest Green Developments on a small scale ground mounted solar PV scheme in Rutland. The proposed array would generate a very modest 0.074MWp and cover an area of circa 0.15Ha. However, as with most development it is subject to the mandatory Biodiversity Net Gain (BNG) requirements.

As part of the application a full Preliminary Ecology Survey and BNG Report were submitted. It was demonstrated that 10% net gain could be provided within the site and that this would comprise the improvement of “existing modified grassland” in “poor condition” to “other neutral grassland” in “good condition”. This work is relatively minor and low risk, but for the purposes of BNG constitutes “significant” on-site enhancement as it provides for the full amount of net gain.

At application stage the LPA were insistent on the need for an obligation, principally to provide for a monitoring fee for the 30 year management of the BNG. The monitoring fee and associated legal fees would have put a cost to the applicant of circa £10k. On such a small proposal this was not commercially viable.

Squires Planning argued that both the BNG legislation and the Planning Practice Guidance make it clear that conditions can be used to secure BNG and associated monitoring, and that, in this instance, a condition was more appropriate given the scale of the enhancement and the disproportionate cost of the obligation. The LPA refused the application on the lack of an appropriate obligation.

Squires Planning appealed the decision, which has now been allowed. The Inspector rightly considered that “the BNG chapter of the PPG also explicitly confirms that a planning condition(s) can be used to secure significant onsite habitat enhancements as well as monitoring and reporting arrangements. This needs to be considered in the context of Paragraph 56 of the National Planning Policy Framework, which states that planning obligations should only be used where it is not possible to address unacceptable impacts through planning conditions. Therefore, it would seem to be a matter of planning judgment whether, in the circumstances of any given case, the more detailed and robust approach of a planning obligation is necessary instead of a condition(s). This judgment is likely to be influenced by the value of the habitat, the extent of the enhancement and the complexity involved in the delivery, maintenance and monitoring of it. The overall risk in other words.”

The Inspector ultimately found that, in relation to the appeal scheme, it could be secured and monitored adequately through conditions. 

Mark Campbell, Regional Director at Squires Planning reflects “This is an excellent result for our client. However, there are also wider ramifications for the way BNG is generally handled by LPA’s. I have found to date that most LPA’s seek obligations no matter what the proposal and level of complexity of the BNG enhancements area, principally being to generate funds through monitoring fees. It is clear from this decision that conditions are perfectly adequate and that LPA’s should be fully assessing the actual need for obligations in all cases. It is also important for consultants to set out their position on conditions versus obligations in submissions and this is likely to require liaison within ecologists preparing BNG reports. Nevertheless, this should be good news for smaller proposals with non-complex BNG enhancements even when those enhancements are significant.”