Potential Pitfalls of the New Planning Advisory Service’s s106 Template

Biodiversity Net Gain Sites: Understanding the New S106 Template for Farmers and Landowners

For farmers and landowners eager to establish Habitat Gain Sites swiftly and record Biodiversity Net Gain (BNG) units on the National Register, the new Section 106 (s106) template provided by the Planning Advisory Service (PAS) appears to be a welcome step forward. However, before deferring to the template, it’s crucial to understand the potential pitfalls.

When Does the 30-Year Period Start?

Creating a Habitat Gain Site involves a minimum 30-year commitment to developing and maintaining the land, as outlined in your Habitat Management and Monitoring Plan (HMMP). This plan, submitted with your s106 application, details how your appointed land manager will establish and sustain the habitat creation or enhancement over time.

However, the PAS template currently lacks a mechanism for phased delivery of the site—a factor that can be vital for the viability of proposals, especially for larger or more complex sites.

Security for the performance of s106 obligations remains a significant concern for local planning authorities (LPAs) when considering Habitat Gain Sites, necessitating case-by-case negotiations. The template includes a bond as an optional form of security, which might misleadingly suggest it’s the preferred option, though this isn’t necessarily the case.

Avoiding Duplication of Fees

Ensuring that monitoring fees charged by the LPA are reasonable and proportionate is essential, given that these fees will be applied over the entire 30-year maintenance period. There may be a risk of higher monitoring fees being applied because the template doesn’t specify standards for monitoring habitat creation or enhancement works. The industry needs to address this gap. For example, if you can demonstrate that a competent person or body is overseeing the monitoring, this should result in a reduced LPA monitoring fee.

What if my Habitat Gain Site Fails?

Clarity is needed on the steps to be taken if the gain site fails. While replacing lost or failed habitat might seem straightforward, LPAs must set realistic expectations regarding the remedial actions required from landowners and the feasible timescales for these actions.

Any failure of the gain site—and so a default under the s106 agreement—is ultimately enforceable against the landowner, adding an extra layer of burden..

The current template also lacks force majeure provisions, which adds further risk for landowners, especially since obtaining insurance for such scenarios can be challenging.

PAS Template V LPA Template

Negotiating s106 agreements can be time-consuming and resource-intensive for both LPAs and offsite providers. Delays in finalising the legal document can postpone the creation of BNG units, affecting their availability on the National Register for sale.

As of now, the PAS template hasn’t been endorsed by DEFRA or central government, and LPAs aren’t obligated to use or reference it. Therefore, relying on this template doesn’t guarantee a faster process. Experience shows that LPAs often prefer using their own templates when negotiating s106 agreements, a trend that’s unlikely to change in the near future.

While the PAS template serves as a helpful reference point for those involved in BNG, it’s essential to review and reflect on the implications in full. Its primary goal is commendable—aiming to ease resource pressures by expediting the s106 agreement process and accelerating the registration of BNG units. However, understanding its limitations and potential pitfalls is crucial for landowners.

Legal Advice for Habitat Gain Sites

Navigating the complexities of biodiversity net gain requires expert guidance. Our team of legal planning, real estate development, agriculture, and private client lawyers is here to assist you with:

• Advising on emerging legislative obligations
• Conducting due diligence
• Preparing Section 106 and BNG unit sale agreements
• Facilitating land purchases
• Drafting other essential legal documents