The current plans by Danone HSW do not meet the 10% increase in biodiversity value set by the statutory framework for biodiversity net gain (BNG), and they do not offer any legal commitment to achieving the target that can be enforced by the Local Planning Authority (LPA). Although the BNG obligations do not apply to their planning application, Danone HSW have stated that they are committed to delivering BNG.
Danone HSW states “2.3.31 …the Council’s aim is to secure no net loss…” - Addendum Planning Statement
The “Biodiversity Net Gain Assessment” report (commissioned by Danone HSW) dated 20/11/2023 concluded:
“26. This exercise identifies an overall Net Loss of 3.15 Habitat Units (-20.23%).”
Tom Gordon, MP for Harrogate and Knaresborough, commented:
“To suggest these proposals would be a net gain is misguided at best and green-washing at worst. We know it would take years for new trees to mature.”
BNG is a way of creating and improving biodiversity by requiring development to have a positive impact (‘net gain’) on biodiversity. Every planning permission approved is deemed to have been granted subject to the condition that the biodiversity gain objective is met. This objective is for development to deliver at least a 10% increase in biodiversity value.
BNG is:
A legal agreement that is an obligation to enhance and maintain a habitat
The legal agreement for offsite gains or significant onsite gains must last for at least 30 years
Source: https://www.gov.uk/guidance/legal-agreements-to-secure-your-biodiversity-net-gain
BNG is mandatory from 12th February 2024. BNG makes sure development has a measurably positive impact (‘net gain’) on biodiversity, compared to what was there before development.
Government guidance states that if a planning application for a development was made before day one of mandatory BNG on 12th February 2024, the development is exempt from BNG.
In the document “Addendum Planning Statement” Danone HSW draws attention to this. They state:
“2.3.29 - The PPG is clear that BNG has only been commenced for planning permission granted in respect to an application made on or after 12 February 2024. Permissions granted for applications made before this date are not subject to BNG.”
“2.3.31 …Whilst now a statutory requirement to provide a 10% increase in BNG, this does not apply to the Site…”
Nevertheless, the document states that:
“2.3.31 Our Client has committed to a 10% net gain over the lifetime of the development.”
and
“2.3.40 A commitment to delivering biodiversity net gain.”
However, without a legal agreement the commitment by Danone HSW cannot be governed or enforced. The council will not be able to achieve its 'aim to secure no net loss.’
Danone HSW could “commit” to BNG by freely entering into an agreement with the LPA (planning obligation - Section 106 Agreement) that covers all site work (onsite and offsite). The legal agreement must be in writing and signed by all parties (‘executed as a deed’). As part of a legal agreement Danone HSW would legally commit to the promises they have made, those are:
Creating or enhancing habitats
Managing the habitats for at least 30 years
The LPA would be responsible for enforcing the agreement and making sure Danone HSW meets their obligations.
It should be noted that LPAs are advised not to enter into an agreement if they do not think the landowner will meet their obligations.
Danone HSW have stated that they would enter into such an agreement for the land that is offsite at Crag Lane (0.37 ha). Danone HSW are proposing to minimise any shortfall in BNG units through the purchase and planting of offsite land.
“2.3.34 With regards to this application, our Client has sought to minimise any shortfall in BNG units through the purchase and planting of off-site land at Crag Lane, rather than simply purchasing credits for the shortfall…”
To buy or sell offsite gains, you must have a legal agreement as per government guidance. Danone HSW have said:
“2.2.2 The Applicant is happy to enter into a S106 agreement with the relevant parties to secure this additional voluntary benefit.”
Unfortunately, Danone HSW is specific that this would only cover the offsite area and not the onsite area (because BNG does not apply to the onsite development).
Even with the use of Crag Lane, the “Biodiversity Net Gain Assessment” report dated 20/11/2023 concluded:
“26. This exercise identifies an overall Net Loss of 3.15 Habitat Units (-20.23%).”
The report made use of the DEFRA Biodiversity Metric Calculation Tool (v4.0), and it was commissioned by Danone HSW from Brooks Ecological.
The current plans by Danone HSW do not “protect” and do not “improve” the land (landscaping). It does not meet the 10% increase in biodiversity value set by the statutory framework for biodiversity net gain.