Eddie Millar, RTPI Policy and Practice Advisor has produced this blog with input from Olivia Stapleford, Chair of the National Association of Planning Enforcement.
While much of the planning world’s attention is currently focused on the proposed reforms to the NPPF, the matter of Biodiversity Net Gain (BNG) remains a clear issue that continues to prompt plenty of discussion. At the RTPI, we have shared our thoughts on the introduction of this new policy. Additionally, we have been running an on-going BNG survey to gather members views and experiences. While the RTPI welcomes the introduction of BNG in principle, there are several issues arising relating to implementation and enforcement, and how local authorities will handle their new responsibilities.
We are concerned that local authorities lack the skills and resources to effectively monitor and enforce BNG conditions, and there is a need for clearer guidance as to how Local Planning Authorities (LPAs) should delineate responsibilities for this work. If BNG is to achieve its aims, planners need additional support.
Resourcing, skills, and a proactive approach
Firstly, there are significant concerns that LPA planning enforcement departments lack the capacity and resources to properly monitor and enforce compliance with biodiversity net gain once conditions come into effect. A recent survey revealed that over half of respondents (working in local authorities) are concerned that they do not have enough resources to meet current service demands, and 82% feel that their organisation’s enforcement service is insufficiently resourced to handle the additional work that the implementation of BNG will bring (Sheppard et al., 2024). At present, planning enforcement is often reactive, with very few local authorities able to run a proactive monitoring service. Increased resourcing would help councils adopt a more proactive stance.
Many LPAs lack the necessary processes and mechanisms to effectively handle BNG work (Sheppard et al., 2024). Overstretched enforcement departments lack the capacity to plan how BNG work will be handled, who will be responsible for it, and what additional training will be required. There is significant demand for government guidance on the operationalisation of BNG, but at present, LPAs are having to take on the task themselves of figuring out how BNG will be implemented and monitored in practice. Robust, clear national guidance would provide certainty for local authorities and ensure conformity in approach.
How is BNG compliance enforced?
BNG will be secured either by S106 agreements or via planning condition. With each approach comes uncertainty over how monitoring and enforcement of BNG will work in practice. Uncertainty in enforcement risks undermining the effectiveness of enforcement action, and thereby the planning system itself.
Enforcement teams rarely deal with S106 agreements, which are drafted by legal teams and agreed between the local authority and the developer. Enforcing S106 agreements is difficult, and LPAs will need to have clear processes in place to ensure that enforcement officers have the necessary knowledge and instruction to do so.
If BNG is secured via condition, then a Breach of Condition Notice (BCN) may need to be served if developers do not fulfil their obligations. Current government guidance states that a BCN should only be served if the breach constitutes serious harm to public amenity. Depending on the nature of the breach, it could be difficult to justify that a failure to meet BNG obligations constitutes ‘serious harm’ or not. The aim of a BCN is to rectify a planning breach in a timely manner with a clear, measurable outcome. BNG implementation is an ongoing process, and it remains unclear how breaches will be tackled. This is further confounded by off-site BNG units where BNG is secured in a different location, sometimes within a different LPA. In an instance where off site BNG units are not delivered, whose responsibility is it to enforce this? The lack of guidance from the government means that many authorities will be waiting to see how policy is interpreted in the courts via planning appeals.
Enforcement’s role in reinforcing confidence in planning
Well-resourced enforcement is integral to maintaining confidence in the planning system. If there are no consequences for not meeting obligations, then there is no incentive for developers to fulfil BNG requirements, and suddenly the public benefit from development is under threat. If enforcement teams lack the ‘teeth’ to enforce BNG obligations, how do we avoid inadvertently undermining BNG delivery? We support the introduction of BNG but there remain significant unanswered questions about how it will be implemented in practice, and local authorities need more guidance and support to ensure that it makes a difference.
Planners can continue to respond to our survey to help us understand the ongoing challenges in adapting to BNG implementation.
