As the date for Mandatory BNG approaches in November 2023, we take a look back at how the legal agreements for Offsite BNG have shaped up since February 2023, and what the future holds for Landowners and Developers.

As we know, a key feature of BNG is that it must be secured for a period of 30 years. Whilst BNG is not mandatory until November 2023 (April 2024 for smaller sites), most developments are already required to and are demonstrating biodiversity mitigation measures.

Many landowners have already taken steps to commit land to delivering Offsite BNG where developers cannot deliver the necessary mitigation onsite, by creating Offsite BNG Credits.

We have seen many variations of the legal agreements created to tie down the land from which BNG Credits can be issued, from Agreements under s39 of the Wildlife and Countryside Act 1981 Act to Agreements under s111 Local Government Act.

Under the Environment Act 2021, it is very clear that any BNG Credit must be secured by either planning obligation or a conservation covenant. In turn, for a BNG credit to be registerable on the BNG Register, it must have been created as a planning obligation (so a s106 Agreement) or as a Conservation Covenant. As guidance for Responsible Bodies remains thin, s106 Agreements for securing Offsite BNG have become the safest play for landowners delivering offsite BNG.

What we have seen is some strain on Local Planning Authorities in agreeing the form of BNG Agreements, which are set to become an even more integral part of the planning process.

As new breeds of Natural Capital opportunities are emerging outside of the world of BNG, it begs one of many questions; how will it all be resourced?

Conservation Covenants appear to be the obvious answer. Fortunately, the much-awaited guidance on Responsible Bodies was recently announced. Watch this space…