Minutes:
ML referred to the letter he had circulated to agents and developers.
He explained that with regards to Biodiversity Gain Requirement (Exemptions) allow exemptions for self-build developments.
ML added that there has been a significant increase in the number of self-build applications submitted since the BNG requirement has been introduced.
ML stated that he has received a legal opinion on this matter which raises a couple of points mainly around the declaration and also in relation to the condition/enforceability.
ML highlighted that any false declaration with regards to BNG is a criminal offence under the Fraud Act 2006 and knowingly submitting inaccurate information is illegal and the liability would fall to the individual who signs the paperwork which could be the Planning Agent and could also extend to the applicant as they have facilitated the Agent to make a false submission.
ML added that if the self-build is found to be flawed or either intentionally or accidentally then the BNG condition automatically applies because it applies to the law and is similar to the three year for planning applications and where case law has stated that if there is a legal agreement for that to be there and if it is not imposed it still sits legally on the decision.ML explained that any dwelling which turned out not to be a self-build would breach the planning condition due to the fact that the details were required prior to commencement.
ML explained that a growing number of appeal decisions have come about recently which are being dismissed in relation to enforceability mechanism regarding BNG and self-build. He added that the appeals are being dismissed because the condition does not meet the tests and it would have to be done through a Section 106. ML added that the decisions are being looked at in order to ensure that the council are in a robust and appropriate position to protect the council and developers. He made the point that it could become necessary that there will be the requirement to do a Section 106 on all self builds and if that is the case then officers would look to produce a relatively simple template for standard Section 106 agreements which would be on the council’s website which should reduce costs considering the checking and production of it.
CC explained that he is just about to submit an application for 25 units and there will be an offer to make financial contributions, and the provision of offsite credits related to BNG. He asked whether he should be submitting an actual draft Section 106 as part of the application or could that form part of the application process. ML added that for a scheme of that size, the heads of terms are needed and if the application should progress to completion and approval then the Section 106 will be looked at towards the end. He added that he was referring to the far smaller applications which do not have any other contributions and would normally not require any Section 106.