With the published government intention to remove section 106 agreements for all but the 'largest sites', how does this align with the Environment Act provisions to secure biodiversity net gain via section 106?

The Environment Act received royal assent in November 2020, specifically providing for the newly mandated 10% biodiversity net gain to be secured via section 106 agreements (or planning conditions/conservation covenants). Numerous amendments to the Town and Country Planning Act 1990 were included in order to specifically provide for section 106 to secure the required net gain. 

The newly published Levelling Up and Regeneration Bill proposes abolishing section 106 agreements and CIL, replacing them with a new Infrastructure Levy - introducing an inconsistency between the two legislative ambitions.  A supporting policy paper published by the Department for Levelling Up, Housing and Communities states that new regulations will 'detail the retained role for section 106 agreements to support the delivery of larger sites.' What is classified as a 'larger site' and whether section 106 agreements will be permitted to secure biodiversity net gain provisions at these sites, remains to be seen.

With the consultation on the Environment Act closing earlier this year, we will wait to see whether the outcomes of this consultation will align with the new Levelling Up Bill and if so, whether developers should be expecting biodiversity net gain via to be secured via planning conditions or conservation covenants.