The Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024

PART 1 Introduction

Citation and commencement

1.—(1) These Regulations may be cited as the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024.

(2) These Regulations come into force on the day on which paragraph 3 of Part 2 of Schedule 14 to the Environment Act 2021 comes into force.

Extent and application

2.  These Regulations extend to England and Wales and apply in England only.

Amendments to the Town and Country Planning Act 1990

3.  The Town and Country Planning Act 1990(1) is amended in accordance with regulations 4 to 10.

PART 2 Amendments related to the local planning authority: biodiversity gain in England

4.  In section 1(5) (local planning authorities: general)(2) in paragraph (c), after the words in brackets insert—

“and Part 1A of Schedule 7A (Biodiversity Gain in England: Local Planning Authority).”.

5.  In section 5(1) (the Broads)(3), for “and sections 249, 250 and 300” substitute “, and sections 90A, 249, 250 and 300, and Schedule 7A”.

6.  After paragraph 12 of Schedule 7A(4) (biodiversity gain in England) insert—

“PART 1A LOCAL PLANNING AUTHORITY

Introduction

12A.   This Part sets out rules for determining the local planning authority for the purposes of this Schedule.

General Rule

12B.   The general rule is that the local planning authority is—

(a) the local planning authority which granted the planning permission, or

(b) the local planning authority which could have granted the planning permission had it not been granted by the Secretary of State or a person appointed by the Secretary of State.

12C.   The general rule does not apply where—

(a) the Mayor of London has given a direction under section 2A(5)(applications of strategic importance) (see instead paragraphs 12D and 12E);

(b) a combined authority(6) has granted planning permission in exercise of a power that corresponds to section 2A (see instead paragraph 12G);

(c) an order is made under another Act providing for who is to be the local planning authority for the purposes of Schedule 7A (see instead paragraph 12H).

Rules in cases involving the Mayor of London

12D.— (1) This paragraph applies where the Mayor of London has—

(a) given a direction under section 2A in relation to an application for planning permission, and

(b) granted the planning permission.

(2) The local planning authority is—

(a) in a case where the Mayor of London so directs, the local planning authority to whom the application was made;

(b) in any other case, the Mayor of London.

12E.— (1) This paragraph applies where—

(a) the Mayor of London has given a direction under section 2A in relation to an application for planning permission, and

(b) the Secretary of State has granted the planning permission under section 76A(7) or 77(8).

(2) The local planning authority is whichever of the following the Secretary of State determines is the local planning authority—

(a) the Mayor of London;

(b) the local planning authority to whom the application was made.

12F.— (1) This paragraph applies where—

(a) the Mayor of London has given a direction under section 2A in relation to an application for planning permission, and

(b) the planning permission is granted on an appeal under section 78(9).

(2) The local planning authority is whichever of the following the person determining the appeal directs is the local planning authority—

(a) the Mayor of London;

(b) the local planning authority to whom the application was made.

Rule in case involving combined authorities

12G.— (1) This paragraph applies where a combined authority has granted planning permission in exercise of a function that—

(a) is conferred by an order made under section 105A of the Local Democracy, Economic Development and Construction Act 2009 (other public authority functions)(10), and

(b) corresponds to the function of the Mayor of London under section 2A.

(2) The local planning authority is—

(a) in a case where the order mentioned in sub-paragraph (1)(a) provides for the combined authority to exercise the functions of the local planning authority for the purposes of Schedule 7A, the combined authority;

(b) in any other case, the local planning authority to whom the application for planning permission was made.

Rule in cases involving orders made under other Acts

12H.— (1) In cases where a relevant order provides for the local planning authority, for the purposes of Schedule 7A the local planning authority is the person specified in the order.

(2) For the purposes of sub-paragraph (1), a “relevant order” means an order that is made under—

(a) section 149(1) of the Local Government, Planning and Land Act 1980 (urban development corporation as local planning authority)(11);

(b) paragraph 5 of Schedule 32 to the Local Government, Planning and Land Act 1980 (enterprise zone authority as local planning authority)(12);

(c) section 67(1) of the Housing Act 1988 (housing action trust as local planning authority)(13);

(d) section 13(1) of the Housing and Regeneration Act 2008(14) (Homes and Communities Agency as local planning authority);

(e) sections 91, 105 or 105A of the Local Democracy, Economic Development and Construction Act 2009(15) (local authority and public authority functions);

(f) section 198(2) of the Localism Act 2011 (mayoral development corporation as local planning authority)(16).

(3) This paragraph does not apply in relation to any case set out in paragraphs 12D to 12G (rules in cases involving the Mayor of London or combined authorities).

Supplementary

12I.   In a case where a direction has been given under section 266(1A) (application for planning permission by the statutory undertaker to be dealt with by the Secretary of State and appropriate Minister) and not been revoked, references to the Secretary of State are to be read as references to the Secretary of State and the appropriate Minister(17).

12J.   References in this Part of this Schedule to the local planning authority to whom an application for planning permission was made include references to the local planning authority to whom such an application would have been made had it not been made to the Secretary of State under section 62A(18).”.

PART 3 Amendments related to permission to develop land without compliance with conditions previously attached: biodiversity gain in England

7.  In section 73 (determination of applications to develop land without conditions previously attached)(19) for subsection (2C)(c) substitute—

“(c) the conditions subject to which the planning permission is granted under this section—

(i) do not affect the post-development value of the onsite habitat as specified in the earlier biodiversity gain plan, and

(ii) in the case of planning permission for a development where all or any part of the onsite habitat is irreplaceable habitat within the meaning of regulations made under paragraph 18 of Schedule 7A, do not change the effect of the development on the biodiversity of that onsite habitat (including any arrangements made to compensate for any such effect) as specified in the earlier biodiversity gain plan.”.

PART 4 Amendments related to appeals: biodiversity gain in England

8.  In section 78 (right to appeal against planning decisions and failure to take such decisions)—

(a) in subsection (2) after “development order” insert “or in relation to a biodiversity gain plan specified in regulations under paragraph 16(a) of Schedule 7A (biodiversity gain in England: regulations about determinations)”;

(b) in subsection (3) after “development order” insert “or, in relation to a biodiversity gain plan specified in regulations under paragraph 16(a) of Schedule 7A”.

9.  In section 284 (validity of development plans and certain orders, decisions and directions)(20), after subsection (3)(j) (inserted by paragraph 6 of Schedule 11 to the Levelling-Up and Regeneration Act 2023), insert—

“, or

(k) any determination by the Secretary of State whether to approve a biodiversity gain plan under Schedule 7A (biodiversity gain in England).”.

10.  In section 336(1) (interpretation), after the definition of “authority to whom Part II of the 1959 Act applies”, insert—

““biodiversity gain plan” has the meaning in paragraph 14(1) of Schedule 7A;”.

Signed by authority of the Secretary of State for Levelling Up, Housing and Communities

Lee Rowley

Minister of State

Department for Levelling Up, Housing and Communities

17th January 2024