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A legal agreement is an obligation to enhance and maintain a habitat.Ìý

Who can enter into a legal agreement for BNGÌý

Land managersÌý

You can enter a legal agreement if you:Ìý

• are the landownerÌý
• have a lease on the land that is at least the same length as the legal agreementÌý

If your lease is shorter, you’ll need to include the freeholder in your legal agreement.Ìý

Your legal agreement will not replace any previous property rights.Ìý

DevelopersÌý

If the off-site gain is secured with a legal agreement by the landowner, the developer does not need to enter a legal agreement. Ìý

If the developer uses a legal agreement to secure significant on-site gains or off-site gains on their own land, they must enter the legal agreement as the landowner.

LPAs and responsible bodiesÌý

LPAs and responsible bodies should:Ìý

• monitor the agreement to make sure the landowner meets their obligationsÌý
• register the planning obligation or conservation covenant with the local land charges registerÌý

LPAs and responsible bodies should not enter into an agreement if they do not think the landowner will meet their obligations.

On-site gainsÌý

The requirements for securing on-site gains are different for:

• developments that need planning permission
• nationally significant infrastructure projects (NSIPs)

Developments that need planning permission

For significant on-site gains, developers must have a legal agreement or planning condition.Ìý

If developers use a planning condition, this is separate to the condition that requires them to achieve 10% BNG.

You will also need a legal agreement if on-site gains are not significant, but contribute to locally important species or ecological networks. Check with the LPA if you’re not sure.

Your legal agreement for on-site gains must last for at least 30 years from the date you complete the development.ÌýÌý

Nationally significant infrastructure projects

For NSIPs, all on-site habitat creation or enhancement being used to contribute towards BNG is considered a significant on-site gain.

To secure significant on-site gains, developers must have either:

• a legal agreement
• a requirement in the Development Consent Order (DCO)

The legal agreement or DCO requirement securing on-site gains must last for at least 30 years from the date the habitat enhancement works are finished.

Off-site gainsÌý

To buy or sell off-site gains, you must have a legal agreement.Ìý

The legal agreement for off-site gains must last for at least 30 years from the date you finish the habitat enhancement.Ìý

You can read more about off-site gains (this additional guidance only applies to developments that need planning permission).

How to enter a legal agreement

There are 2 types of legal agreement for BNG:Ìý

• planning obligation (section 106) with an LPAÌý
• conservation covenant agreement with a responsible bodyÌý

As part of the legal agreement, you (or a third party you have sub-contracted to) will need to commit to:Ìý

• creating or enhancing habitatsÌý
• managing the habitats for at least 30 yearsÌý

The legal agreement must be in writing and signed by all parties (‘executed as a deed’).

You should get legal advice before entering a legal agreement. You will have to pay for any legal or other costs related to the agreement.Ìý

Planning obligationÌý

A planning obligation agreement is between landowners and their LPA. The LPA will be responsible for enforcing the agreement.Ìý

Conservation covenant agreementÌý

A conservation covenant agreement is between landowners and a responsible body. This type of legal agreement gives you more flexibility over who the agreement is with.Ìý

There is a list of responsible bodies.Ìý

How long your legal agreement must lastÌý

The legal agreement starts from the date you sign it.Ìý

For on-site BNG, the 30-year maintenance period starts at different points depending on your type of development:

• for developments that need planning permission, it starts when you complete the development
• for NSIPs, it starts when you complete all the habitat enhancement works needed on that land under the legal agreement

For off-site BNG, the habitat enhancement may not start right away. The 30-year maintenance period starts when you complete all the habitat enhancement works needed on that land under the legal agreement.ÌýThat could mean the whole of the gain site, or part of the gain site.

Habitat enhancement works

Habitat enhancement works means capital works such as:

• planting trees
• digging ponds
• fencing
• sowing wildflower seeds

It can also mean stopping management activities that could prevent the proposed habitat enhancement from happening. For example, it could mean:

• stopping applying fertiliser to grassland
• changing a grazing regime
• stopping ditch clearing

Completion of habitat enhancement works can also mean just stopping management activities with no capital works.

Your legal agreement must state clearly when the habitat enhancement work will be completed.

Landowners must maintain the enhanced habitat for at least the length of your agreement.

What to include in your legal agreementÌý

You’ll need to provide detailed information on your planned biodiversity habitat enhancements for the site (for example, create 2 hectares of neutral grassland in moderate condition).ÌýÌý

You may also include what specific actions you’ll take to achieve the habitat enhancements (for example, sow a seed mix or carry out bi-annual cuts).Ìý

You’ll also need to agree who is responsible for:Ìý

• creating or enhancing the habitatsÌý
• maintaining the habitatsÌý
• monitoring the habitats

You can sub-contract the habitat work to a third party, but the legal agreement sets out who is responsible. You cannot include a subcontractor in the legal agreement. Only the landowner, LPA or responsible body can be responsible.

You can provide a detailed schedule of management and monitoring in a habitat management and monitoring plan (HMMP).Ìý

You can from the Planning Advisory Service.Ìý

How you’ll allocate habitat enhancementsÌý

You’ll need to:Ìý

• agree how you’ll allocate the enhancements (for example, to one or more developments)Ìý
• decide who will agree the allocation

Find out how to record the allocation of off-site units.Ìý

Habitat locationÌý

You’ll need to identify the land where you’ll be creating or enhancing the habitat.Ìý

What you’ll need to agree with the LPA or responsible bodyÌý

You’ll need to agree:Ìý

• how you’ll monitor the biodiversity gain site, including a schedule and how to access the landÌý
• an end date that is at least 30 years from when you complete creating or enhancing the habitatÌý
• any consent or licences that you needÌý
• what actions the LPA or responsible body can take if you do not meet your obligationsÌý
• what actions you will take if the habitat enhancement does not go as plannedÌý
• how you will make permitted changes or manage disputesÌý
• any funding arrangements (for example, for ongoing monitoring) and a payment scheduleÌý
• the biodiversity value of the pre-enhancement habitat (calculated using the statutory biodiversity metric)

If the habitat or enhancement is within the wildlife consultation area of an aerodrome, you must agree that it does not harm aircraft operations. Ìý

You’ll need to agree that the relevant aerodrome:Ìý

• was notified of the proposed agreementÌý
• had the opportunity to assess for potential hazards to aircraft operationsÌý
• is satisfied with the risk to aviation safety

What happens if you do not meet the terms of the legal agreementÌý

If you do not maintain the biodiversity gains in your legal agreement, the appropriate body may take enforcement action.Ìý

If you have secured your on-site or off-site gains with a:

• conservation covenant, the responsible body may take enforcement actionÌý
• planning condition or planning obligation, theÌýLPAÌýmayÌýtake enforcement actionÌý
• Development Consent Order requirement, the LPA may take enforcement action

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