AC-2024-LDS-000251 - [2025] EWHC 2256 (Admin)

On 14 October 2024, the final list of conditions was agreed. On 17 October, the section 106 agreement was entered into between the LPA and the developer. As is usual, it was lengthy and, rightly, not all of it was before the court. Schedule 3 dealt with public open space, drainage and masterplanning, including arrangements for access to and management of the ancient woodlands known as Dum Wood, which forms part of the Heybeck Lane site.

Schedule 5 on biodiversity imposed a “Biodiversity Net Gain Requirement”: to achieve “a 10% gain in the number of Biodiversity Units based on the values set out in the Biodiversity Assessment”. The “Biodiversity Assessment” was defined as “an assessment (including Biodiversity Metric calculations) which sets out details of the pre-development diversity value of the Site”. A “Biodiversity Metric” is “the DEFRA biodiversity metric as applicable at the time of the Biodiversity Assessment”.

There would need to be a “BEMP”, i.e.:

“a biodiversity management and enhancement plan detailing:

(a)

details of the biodiversity habitat creation and/or enhancement proposed; and

(b)

a detailed management and maintenance regime to secure such biodiversity habitat for a period of 30 years … .”

There would also be an “Offsite BEMP”, namely:

“a biodiversity management and enhancement plan detailing the biodiversity habitat creation or enhancement proposed on all or part of the Offsite BNG Land [i.e. the ancient woodland] (as identified in the Offsite BEMP by reference to a plan) such plan to include a detailed management and maintenance regime to secure such biodiversity habitat for a period of not less than 30 years... .”

The development of the site could not begin until the LPA had approved the Biodiversity Assessment (Schedule 5, paragraph 2.1). Construction could not commence until the LPA had approved the BEMP and the Offsite BEMP which, together, would have to satisfy the Biodiversity Net Gain Requirement (paragraph 3.1). The following provisions would then apply:

“4.

On-Site Biodiversity Net Gain

4.1.

The Owner shall not Occupy more than 90% of the Dwellings (or comply with such other requirement for timing of provision as may be contained in the BEMP) until the Owner has completed the works of habitat creation and/or enhancement set out in the BEMP and has served notice on the Council confirming completion of such works.

4.2.

From the date of notice served pursuant to paragraph 4.1, the Owner covenants to comply with the requirements of the BEMP (or any amended BEMP submitted by the Owner to the Council and approved by the Council) for a period of 30 years.

5.

Off-Site Biodiversity Net Gain

5.1.

Where an Offsite BEMP applies, the Owner shall not Occupy more than 90% of the Dwellings (or comply with such other requirement for timing of provision as may be contained in the Offsite BEMP) until the Owner has completed the works of habitat creation and/or enhancement set out in the Offsite BEMP and has served notice on the Council confirming completion of such works.

5.2.

From the date of notice served pursuant to paragraph 5.1, the Owner covenants so as to bind the relevant part of the Offsite BNG Land identified in the relevant Offsite BEMP only to comply with the requirements of the Offsite BEMP (or any amended Offsite BEMP submitted by the owner of the relevant Offsite BNG Land from time to time to the Council and approved by the Council) for a period of 30 years.”