Legal update


site and quantifying the net gain required will be rolled out – of which more below. And because all the administration around net gain is via the mandate of a planning condition the regime comes ready-made for enforcement by the local planning authority. Subject to an authority’s usual manpower shortages, planning officers will be able to serve breach of condition or stop notices to prevent the development from going forward – and of course in practice the mere existence of this sanction will encourage compliance.


Failure to adhere to a condition


precedent leaves the entire planning permission vulnerable to being regarded as not lawfully implemented. Nor can any development subject to finance disregard a condition precedent without the risk that it may breach the terms of its loan facility. The mechanism put in place represents a very high bar for developers. But how is the 10 per cent net gain assessment carried out?


The means of assessment The assessment is a complex algorithm referred to as the biodiversity metric (‘the metric’). This has been in development for several years and it is now at version 4.0. At heart this is an accounting tool for use in calculating biodiversity net gain. It has been developed by Natural England and Defra and enables calculation of biodiversity losses and gains (and it is supplemented by a small sites metric for use at developments of 10 dwellings or less). What are the consequences of this new


legal framework? Seeking positive overall gain as opposed to mere mitigation is the really arresting thing, because that is not the way the consenting process has worked since the planning regime was instituted in this country. The effects and impacts of that have yet to be seen. But on another view the legislative changes in many ways just follow the direction of travel. A growing number of local authorities


have been seeking biodiversity net gain for a number of years, based not on a legal requirement but either on the National Planning Policy Framework or even more compellingly through their own planning policies. It is the scale of biodiversity net gain prompted by the legislation that is the most noteworthy thing.


Consequences for sites


What does this mean for care home developers, either in terms of their proposed sites or for incidental pieces


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Developers of land, including care home operators, should take note


of land in their landbanks? Sites which include room for significant biodiversity improvement will more readily pass the tests set out in the metric because of a preference for the net gain to be committed as close geographically as possible to the development it is being given in respect of. This means two things. Firstly, development of a care home site with associated landscaping could become more difficult, unless it had a more significant green space attached to it. And the green space attaching to any care home site may need to be designed in a more complex manner to accommodate a number of requirements: not just creation of a pleasant and peaceful environment, but in such a way as to actively enhance the biodiversity levels on the site. That could mean parts of the development were not available for direct use by the residents, for example. Secondly, like all landowners, care homes may want to consider what opportunities there may be for any surplus


land in their possession. It may not be suitable for development, but as part of the biodiversity objective their land if not the subject of any other obligations may now be part of an emerging market of mitigation land for development projects.


Mitigation as a market The traditional means of establishing off- site mitigation was an agreement under section 106 of the Town & Country Planning Act 1990. That establishes a covenant as a local land charge, enforceable by the local planning authority in perpetuity; and crucially, it enables positive as well as restrictive covenants to run with the land (ordinarily in English law only negative covenants run with the land). A section 106 agreement is only enforceable by the local planning authority within its authority area.


Sitting alongside section 106 we now


have the conservation covenant. A conservation covenant is similar


to a section 106 agreement – with the differences that it may be enforced by a potentially much wider range of bodies, and the term of the agreement can be limited also. The responsible bodies who can receive a conservation covenant include local planning authorities, other public bodies,


www.thecarehomeenvironment.com November 2023


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