September 2023 – Sussex Section 106 agreement marks key moment for developers in Biodiversity Net Gain provision

A Sussex estate has signed an innovative Section 106 agreement with the South Downs National Park Authority (SDNPA) marking a ground-breaking step in terms of how developers can provide biodiversity net gain (BNG).

Completed on July 18, the legal agreement means 31ha of land at Iford Estate – equating to 210 biodiversity units – is the first to appear on the SDNPA’s register of land formally ‘dedicated’ for BNG provision.

Iford, a beautiful 1,200ha estate near Lewes, has an ambitious 30-year landscape-scale vision with nature recovery at its heart, using BNG as the main vehicle for securing the necessary investment.

The ‘Iford Biodiversity Project’ will ultimately see about 800ha of land permanently dedicated to nature recovery, involving the generation of about 3,000 biodiversity units.

The plan involves the creation of floodplain grazing marsh providing habitat for breeding and wintering waders; species-rich grassland for rare plants, insects and mammals; plus tree-planting on parts of the farm to link up with existing woodland in this more sparsely wooded section of the South Downs National Park.

The BNG Section 106 is the result of a huge effort by a range of experts, including the team at Iford, the SDNPA, the environment and farming consultants CLM, Lux Nova Partners (a law firm specialising in the clean energy and environmental sectors) and Town Legal (a specialist planning law firm).

CLM Director Anthony Weston, who has 20-plus years’ experience of habitat work and led a series of studies and modelling exercises at Iford, described this as “one of the biggest and best nature creation, enhancement and restoration projects in the country”.

He also dubbed the Section 106 signing “momentous” in the evolution of the ecosystem services market.

“With BNG due to become mandatory in November for all planning applications, this partnership between Iford and the National Park – which is also the Local Planning Authority – will help developers work with the estate to fulfil their statutory BNG requirements.

“It won’t, of course, lead to more development in the National Park – but it will mean that development happening elsewhere will benefit nature and people here, by drawing private investment into this very special place.

“Part of the attractiveness of Iford as a venue for providing BNG is how it fits within the wider landscape. It’s in a National Park, in the Ouse Valley and adjacent to SSSI and National Nature Reserve land, as well as containing large areas of ‘priority’ habitats. It’s well placed to link those, allowing aggregated gain. It’s part of a patchwork of natural and semi-natural habitats, rather than an island. We can create ‘bigger, better and more joined-up’ habitats, in line with the principles set out in The Lawton Report.”

Iford Estate Manager Ben Taylor says: “Our scheme draws on the extensive habitat and species surveys conducted over the past few years, as well as historical mapping to determine land use patterns, soil sampling and hydrological assessments.

“This is already a diverse and inspirational landscape, with recent surveys showing over 1,300 species present on the Estate, many with conservation status, including 155 species of birds of which 87 are of conservation concern.

“We will increase the diversity of species over the whole estate, whilst still retaining food production as the principal land use on the most fertile land.”

David Short, a Partner at Lux Nova Partners, says: “This is such an exciting initiative to be involved in because it’s cutting-edge law.

“Section 106s are, of course, often used in the planning process, but we believe this is the first time one has been secured specifically for mandatory BNG market readiness,” adds Mr Short, who advised Iford on the commercial contract between the estate and the SDNPA, as well as supporting Town Legal on the Section 106 agreement.

“As a lawyer, it’s rare to work on a completely new type of contract, so what we’ve done here is really innovative. It’s also very scaleable and will be applicable around the country.”

Paul Arnett, a Senior Associate at Town Legal LLP, says: “It was a privilege to work on this truly pioneering project which adopted a novel and inventive approach to the use of the section 106 mechanism to secure the dedication, management, and allocation process for the nature-rich habitat bank.

“It provides an adaptable model capable of being rolled out nationwide with the onset of the mandatory BNG regime which provides significant opportunities for landowners and farmers to diversify their income streams.”

Nick Heasman, Countryside and Policy Manager at the National Park, said: “This is a major step forward for the National Park’s ReNature initiative, which is looking to create 13,000 hectares of new habitat to help wildlife flourish. Biodiversity loss and climate change are two of the biggest long-term issues facing our country and this innovative scheme at Iford will kickstart a regional recovery that will benefit both nature and local communities.”

Earlier this year the National Park launched its ReNature Credits scheme, a brokerage service that will help connect landowners and developers to create areas of land for Biodiversity Net Gain and nature recovery.

Mr Heasman added: “As a National Park covering 1,600km2 and with over 1,000 different landowners, we can identify the very best areas for biodiversity restoration and ensure habitat connectivity.”


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