With the Auckland’s drive toward sustainable development, new planning regulations have introduced Biodiversity Net Gain (BNG) requirements for most developments. However, certain self-build projects are exempt from these BNG obligations, thanks to the definition and provisions outlined in the Self-build and Custom Housebuilding Act 2015. For those who qualify as BNG-exempt self-builders, understanding Section 106 agreements remains essential, as they can still play a critical role in addressing planning obligations beyond BNG compliance.
In this article, we’ll clarify what it means to be a BNG-exempt self-builder, as defined by Section 1(A1) of the Self-build and Custom Housebuilding Act 2015, and explore how Section 106 agreements are relevant to these projects.
Defining BNG-Exempt Self-Builders under the Self-build and Custom Housebuilding Act 2015
The Self-build and Custom Housebuilding Act 2015 provides legal clarity on what constitutes a self-build project. Under Section 1(A1) of this Act, a self-builder is defined as:
“the building or completion by:
(a)individuals,
(b)associations of individuals, or
(c)persons working with or for individuals or associations of individuals,
of houses to be occupied as homes by those individuals.”
In summary, a self-builder is an individual (or group) who builds or commissions a home primarily for personal use, meaning that the finished property will serve as the primary residence for the builder(s) rather than for commercial sale or investment purposes.
Key elements of this definition include:
- Purpose: The primary purpose of the build must be personal occupancy, distinguishing self-build projects from commercial developments.
- Ownership: Self-builders must retain ownership in the development and cannot primarily aim to profit from resale.
- Local Authority Registers: Self-builders have access to local authority registers that can help them locate suitable land for these types of developments, acknowledging the unique nature of self-build projects within planning systems.
The primary implication of this definition for BNG exemptions is that small-scale, personal-use developments are recognised as less likely to impose significant ecological impacts on the surrounding environment. Therefore, certain self-build projects may qualify for BNG exemptions, particularly if their size or scale falls below the thresholds set by local authorities for significant environmental impact.
The Role of Section 106 Agreements for BNG-Exempt Self-Builders
While some self-builders may qualify for BNG exemptions, this does not automatically exempt them from other planning obligations. Local authorities often use Section 106 agreements to address planning requirements that benefit the community or protect local infrastructure and resources, especially where BNG provisions are not required.
A primary use of a Section 106 Legal Agreement when dealing with self-build projects, is for them to secure an obligation on the part of the landowner that they qualify as a self-builder pursuant to the The Self-build and Custom Housebuilding Act 2015.
A Section 106 agreement, established under the Town and Country Planning Act 1990, is a legally binding agreement between a developer (or self-builder) and the local authority. For BNG-exempt self-builders, Section 106 agreements may still address several key areas:
- Environmental Enhancements: Although full BNG compliance may not be required, a Section 106 agreement can include minimal environmental commitments, such as preserving existing trees, adding small-scale wildlife habitats, or installing features like bird boxes. These smaller measures contribute to local biodiversity without imposing a full BNG framework.
- Community Infrastructure Contributions: Section 106 agreements can also require financial or in-kind contributions towards local infrastructure that may be impacted by new developments. For example, self-builders may be asked to contribute to nearby parks, public transport, or road improvements, which help sustain the area’s infrastructure as more residents move in.
- Planning Condition Compliance: A Section 106 agreement is an effective way to ensure that all planning obligations are formalised and enforceable. This agreement ensures that self-builders, even when exempt from BNG, comply with other planning conditions imposed by the local authority, contributing to the development’s compatibility with community needs and environmental standards.
Challenges to Consider
For self-builders exempt from BNG requirements, a Section 106 agreement may still introduce some challenges, including:
- Financial Costs: Contributions towards infrastructure or minor environmental measures may add costs to the self-build project. Understanding these financial commitments early on is crucial for effective budgeting.
- Ongoing Maintenance Requirements: In some cases, Section 106 agreements may include maintenance obligations to ensure that minor environmental enhancements continue to benefit the area long-term.
- Complexity of Negotiations: Negotiating the terms of a Section 106 agreement can be complex, especially for self-builders new to the planning process. Consulting legal professionals who specialise in property and planning law can streamline this process and help avoid complications.
- Residential Lenders – residential lenders will not always enter into Section 106 Agreements as a matter of policy, and this can have an impact on self-builders obtaining a BNG exemption as a legal agreement may not be able to be secured.
How Ellisons Solicitors Can Support Self-Builders
At Ellisons, we offer tailored legal guidance for self-builders navigating the requirements of the Self-build and Custom Housebuilding Act 2015, including understanding BNG exemptions and negotiating Section 106 agreements. Our expertise in planning law can help self-builders:
- Determine their eligibility for BNG exemptions and understand local biodiversity requirements.
- Interpret the terms and obligations of Section 106 agreements.
- Develop a strategy to meet all planning obligations efficiently and cost-effectively.
Self-build projects present unique opportunities and challenges, particularly in the current regulatory landscape. Contact Chris Harvey at Ellisons Solicitors to discuss your self-build project and learn how we can help you achieve a smooth, compliant, and successful development process.
