Legalize / United Kingdom / Statutory-Instrument

The Biodiversity Gain Site Register Regulations 2024

Type Statutory-Instrument

Publication 2024-01-17

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(a) an address to which the requested statement of reasons may be sent to the person by post, and

(b) an email address to which the requested statement may be sent to the person by email.

(8) On receipt of a request under paragraph (6) which complies with paragraph (7), the register operator must as soon as practicable give notice to the person who made the request, setting out the reasons for the register operator’s decision.

PART 9 — Appeals

Right to appeal against rejection of an application, amendment of the register or removal of an entry from the register

30

(1) Where the register operator gives notice under regulation 10 that it has rejected an application referred to in regulation 7 (application to register land in the biodiversity gain site register) the person who made the application may appeal to the First-tier Tribunal against the register operator’s decision to reject the application.

(2) Where the register operator gives notice under regulation 15(2) that it has rejected an application referred to in regulation 12(2) (application to record the allocation of any habitat enhancement to a development in the biodiversity gain site register) the person who made the application may appeal to the First-tier Tribunal against the register operator’s decision to reject the application.

(3) Where the register operator gives notice under regulation 19 that it has rejected an application referred to in regulation 17(1) (application to amend an entry in the biodiversity gain site register) the person who made the application may appeal to the First-tier Tribunal against the register operator’s decision to reject the application.

(4) Where the register operator gives notice under regulation 19 that it has accepted an application referred to in regulation 17(1) (application to amend an entry in the biodiversity gain site register) but is not satisfied that all of the amendments requested in the application by the person who made the application need to be made, the person who made the application may appeal to the First-tier Tribunal against the register operator’s decision not to make the requested amendments or any of them.

(5) Where the register operator amends an entry in the biodiversity gain site register under regulation 20 (amendment of an entry without application) any interested person may appeal to the First-tier Tribunal against the register operator’s decision to amend the entry.

(6) Where the register operator gives notice under regulation 25(13) that it has rejected an application referred to in regulation 24(2) (application to have an entry removed from the biodiversity gain site register) the person who made the application may appeal to the First-tier Tribunal against the register operator’s decision to reject the application.

(7) Where the register operator removes an entry from the biodiversity gain site register under regulation 26 (removal of an entry without application) any interested person may appeal to the First-tier Tribunal against the register operator’s decision to remove the entry.

(8) For the purposes of paragraphs (5) and (7), an “interested person” in relation to an appeal against the amendment or removal of an entry in the biodiversity gain site register in which land is registered in relation to a conservation covenant means a person—

(a) who is required under the conservation covenant to carry out works on the land for the purpose of habitat enhancement,

(b) who is required under the conservation covenant to maintain any habitat enhancement to be achieved by works required to be carried out on the land for that purpose under the covenant, or

(9) For the purposes of paragraphs (5) and (7), an “interested person” in relation to an appeal against the amendment or removal of an entry in the biodiversity gain site register in which land is registered in relation to a section 106 agreement means a person—

(a) who is required under a planning obligation in the section 106 agreement to carry out works on the land for the purpose of habitat enhancement,

(b) who is required under a planning obligation in the section 106 agreement to maintain any habitat enhancement to be achieved by works required to be carried out on the land for that purpose under a planning obligation in the section 106 agreement, or

Determination of appeal against rejection of an application

31

(1) This regulation applies to an appeal under regulation 30(1), (2), (3) or (6) against a decision of the register operator to reject an application.

(2) Where, on an appeal to which this regulation applies, the First-tier Tribunal is satisfied that any of the grounds in paragraph (4) applies, it must quash the register operator’s decision to reject the application and—

(a) direct the register operator to accept the application, or

(b) direct the register operator to reconsider the application under regulation 9, 14, 18 or 25 (as the case may be) in accordance with its ruling.

(3) Where, on an appeal to which this regulation applies, the First-tier Tribunal is not satisfied that any of the grounds in paragraph (4) applies, it must confirm the register operator’s decision to reject the application.

(4) The grounds referred to in paragraphs (2) and (3) are—

(a) that the register operator’s decision to reject the application was based, wholly or partly, on an error of fact;

(b) that the register operator’s decision to reject the application was wrong in law;

(c) where the decision to reject the application was made under regulation 9(10), 14(10), 18(8) or 25(10), that the register operator’s decision to reject the application was unfair or unreasonable for any other reason;

(d) that any decision of the register operator not to exercise its power under regulation 9(6), 14(6), 18(6), or 25(6) (as the case may be), and to reject the application as a result, was unfair or unreasonable for any other reason.

Determination of appeal against decision not to make requested amendments

32

(1) This regulation applies to an appeal under regulation 30(4) against a decision of the register operator not to make an amendment or amendments requested in an application referred to in regulation 17(1) (application to amend an entry in the biodiversity gain site register).

(2) Where, on an appeal to which this regulation applies, the First-tier Tribunal is satisfied that either of the grounds in paragraph (4) applies in relation to the register operator’s decision not to make an amendment, it must quash the register operator’s decision not to make the amendment and—

(a) direct the register operator to make the amendment, or

(b) direct the register operator to reconsider whether to make the amendment.

(3) Where, on an appeal to which this regulation applies, the First-tier Tribunal is not satisfied that either of the grounds in paragraph (4) applies in relation to the register operator’s decision not to make an amendment, it must confirm the register operator’s decision not to make the amendment.

(4) The grounds referred to in paragraphs (2) and (3) are—

(a) that the register operator’s decision was based, wholly or partly, on an error of fact;

(b) that the register operator’s decision was wrong in law.

Determination of appeal against amendment or removal of a register entry

33

(1) This regulation applies to an appeal under regulation 30 against a decision of the register operator to—

(a) amend an entry in the biodiversity gain site register under regulation 20 (amendment of an entry without application), or

(b) remove an entry from the biodiversity gain site register under regulation 26 (removal of an entry without application).

(2) Where, on an appeal to which this regulation applies, the First-tier Tribunal is satisfied that any of the grounds in paragraph (4) applies, it must—

(a) quash the register operator’s decision, and

(b) direct the register operator to reverse the amendment in the biodiversity gain site register or reinstate the removed entry (as the case may be).

(3) Where, on an appeal to which this regulation applies, the First-tier Tribunal is not satisfied that any of the grounds in paragraph (4) applies, it must confirm the register operator’s decision.

(4) The grounds referred to in paragraph (2) and (3) are—

(a) that the decision appealed against was based, wholly or partly, on an error of fact;

(b) that the decision was wrong in law;

Consequences of appeal where register operator directed to accept an application

34

(1) Where the register operator is directed under regulation 31(2)(a) to accept an application referred to in regulation 7, the register operator must comply accordingly with the requirements of regulation 11 in relation to that application.

(2) Where the register operator is directed under regulation 31(2)(a) to accept an application referred to in regulation 12(2), the register operator must comply accordingly with the requirements of regulation 16 in relation to that application.

(3) Where the register operator is directed under regulation 31(2)(a) to accept an application referred to in regulation 17(1), the register operator must comply accordingly with the requirements of regulation 18(12) and regulation 19(1) in relation to that application.

(4) Where the register operator is directed under regulation 31(2)(a) to accept an application referred to in regulation 24(2), the register operator must—

(a) comply with the requirements of regulation 25(12) in relation to that entry and any documents referred to in that regulation, and

(b) comply accordingly with the requirement in regulation 25(13) in relation to the application.

Consequences of appeal where register operator is directed to reconsider an application or a decision not to make an amendment

35

(1) Where the register operator is directed under regulation 31(2)(b) to reconsider an application referred to in regulation 7, regulations 9, 10 and 11 apply in relation to the application as though it had not been rejected.

(2) Where the register operator is directed under regulation 31(2)(b) to reconsider an application referred to in regulation 12(2), regulations 14, 15 and 16 apply in relation to the application as though it had not been rejected.

(3) Where the register operator is directed under regulation 31(2)(b) to reconsider an application referred to in regulation 17(1), regulations 18 and 19 apply in relation to the application as though it had not been rejected.

(4) Where the register operator is directed under regulation 31(2)(b) to reconsider an application referred to in regulation 24(2), regulation 25 applies in relation to the application as though it had not been rejected.

(5) Where the register operator is directed under regulation 32(2)(b) to reconsider a decision not to make an amendment to the information in an entry in the biodiversity gain site register, it must reconsider that decision and, if it is satisfied that the amendment needs to be made, make that amendment accordingly.

PART 10 — Effect of applications to and decisions etc of the register operator

Applications etc and decisions to have effect only for the purposes of these Regulations

36

(1) The provision of any information or document to the register operator for any purpose under these Regulations (whether by making an application which includes it or otherwise) does not have effect as a notification of any matter to the register operator for any other purpose.

(2) No decision of the register operator under these Regulations may be taken as indicating consent or assent to, or any other kind of approval of or acquiescence to, the carrying out of any particular works on the land to which the decision relates.

No infringement of copyright by register operator

37

The register operator does not infringe copyright in a work by doing anything, in relation to a document recording or embodying the work, which is necessary for the purpose of complying with—

(a) an obligation of the register operator under regulation 11(3)(b) to place the document on the biodiversity gain site register, or

(b) the register operator’s obligation under regulation 4 to ensure that information in the document, when the document has been placed on the biodiversity gain site register, is accessible to members of the public.

PART 11 — Notices

Methods of giving notice under these Regulations

38

(1) A notice under these Regulations may be given to a person by—

(a) sending it by post to the person at the person’s proper address, or

(b) sending it to the person by email to the person’s appropriate email address

(and see regulations 39 and 40 for the meaning of “proper address” and “appropriate email address”).

(2) A notice given to a person under these Regulations by sending it to the person by email is to be treated as having been given to that person 24 hours after it was sent.

Address to be used for a notice given in connection with an application under these Regulations

39

(1) This regulation applies to a notice given by the register operator to a person under these Regulations in connection with an application made by that person.

(2) The person’s proper address for the purposes of regulation 38(1)(a) is (subject to paragraph (4)) the address for receipt of notices sent by post included in the application under regulation 8(2)(b), 13(1)(c), 17(10)(c)(i) or 24(5)(c) (as the case may be).

(3) The person’s appropriate email address for the purposes of regulation 38(1)(b) is (subject to paragraph (5)) the address for receipt of notices sent by email included in the application under regulation 8(2)(c), 13(1)(d), 17(10)(c)(ii) or 24(5)(d) (as the case may be).

(4) Where, since making an application under these Regulations, a person has notified the register operator in writing of a change of address for receipt of notices sent by post under these Regulations in connection with the application, the person’s proper address in relation to any such notice is the address most recently provided in writing to the register operator by that person for receipt of notices sent by post under these Regulations in connection with the application.

(5) Where, since making an application under these Regulations, a person has notified the register operator in writing of a change of address for receipt of notices sent by email under these Regulations in connection with the application, the person’s appropriate email address in relation to any such notice is the address most recently provided in writing to the register operator by that person for receipt of notices sent by email under these Regulations in connection with the application.

Address to be used for a notice given otherwise than in connection with an application under these Regulations

40

(1) This regulation applies to a notice given by the register operator to a person under these Regulations otherwise than in connection with an application made by that person.

(2) Subject to paragraphs (3) and (5), the person’s proper address for the purposes of regulation 38(1)(a) is—

(a) where the person is a body corporate, the address of its registered or principal office;

(b) where the person is a partnership or other incorporated association, the address of its principal office;

(3) Where, despite making reasonable inquiries, the register operator is unable to ascertain an address which is the person’s proper address as provided by paragraph (2), the person’s proper address for the purposes of regulation 38(1)(a) is any address at which the register operator reasonably believes that the notice will be received by—

(a) the person;

(b) where the person is a body corporate, an officer or clerk of the body corporate;

(d) where the person is an unincorporated association other than a partnership, an officer or member of the association.

(4) Subject to paragraph (5), the person’s appropriate email address for the purposes of regulation 38(1)(b) is any email address at which the register operator reasonably believes that the email will be received by—

(a) the person;

(b) where the person is a body corporate, an officer or clerk of the body corporate;

(d) where the person is an unincorporated association other than a partnership, an officer or member of the association.

(5) In the case of a notice given to a person under regulation 23(7) or 29(8)—

(a) the person’s proper address for the purposes of regulation 38(1)(a) is the address provided by that person under regulation 23(6)(a) or 29(7)(a) (as the case may be);

(b) the person’s appropriate email address for the purposes of regulation 38(1)(b) is the email address provided by that person under regulation 23(6)(b) or 29(7)(b) (as the case may be).

PART 12 — Review of regulatory provision

Requirement to carry out a review of the regulatory provision made by these Regulations

41

(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provision contained in these Regulations, and

(b) publish a report setting out the conclusions of that review.

(2) The first report must be published before the end of the period of 5 years beginning with the day on which these Regulations come into force.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(4) of the Small Business, Enterprise and Employment Act 2015¹³ requires that a report published under this regulation must in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a),

(b) assess the extent to which those objectives are achieved,

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(5) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Signed

Rebecca Pow — Parliamentary Under Secretary of State — Department for Environment, Food and Rural Affairs — 17th January 2024

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations make provision for and in relation to a register of biodiversity gain sites (“the biodiversity gain site register”). “Biodiversity gain site” is defined in section 100(2) of the Environment Act 2021 (“the 2021 Act”).

These Regulations are made in connection with Schedule 7A to the Town and Country Planning Act 1990 (“the 1990 Act”), which makes provision for the grant of planning permission for a development in England to be subject to a condition to secure than the biodiversity gain objective in paragraph 2 of that Schedule is met in relation to the development. That objective is met if the biodiversity value attributable to the development exceeds, by at least 10%, the pre-development biodiversity value of habitat on the land to which the planning permission relates. For this purpose, the biodiversity value attributable to a development includes (subject to further conditions in Schedule 7A to the 1990 Act) the biodiversity value of any habitat enhancement which is recorded in the biodiversity gain site register and is allocated to the development. Section 100 of the 2021 Act provides for that register to be established by regulations.

Regulations 3 and 4 require Natural England to establish and maintain the biodiversity gain site register and to ensure that information in it is accessible to the public. References in these Regulations to “the register operator” are to Natural England.

Regulations 5 to 11 provide for the registration of land in the biodiversity gain site register. The Regulations provide for land to be registered in relation to a particular conservation covenant or section 106 agreement. Conservation covenants are provided for by Part 7 of the 2021 Act. Section 106 agreements are instruments by which planning obligations are entered into (whether by agreement or otherwise) under section 106 of the 1990 Act. It is possible for the same land to be registered more than once in the register, but not in relation to the same conservation covenant or section 106 agreement. Regulation 6 deals with eligibility of land to be registered. Regulations 7 and 8 provide for applications to register land. Regulations 9 to 11 provide for the determination of such applications and the registration of land by the register operator.

Regulations 12 to 16 apply where land is already registered in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement. They provide for the recording on the register of any allocation of habitat enhancement on the land to a development for which planning permission has been granted. These regulations provide for applications to have such allocations recorded on the register, and for the determination of such applications by the register operator. As mentioned above, Schedule 7A to the 1990 Act provides for the biodiversity value of habitat enhancement allocated to a development to count towards the biodiversity value attributable to that development where the habitat enhancement in question is registered in the biodiversity gain site register.

Regulations 17 to 19 provide for the amendment of information on register on application to the register operator.

Regulations 20 to 23 allow the register operator to amend information on the register on its own initiative.

Regulations 24 to 29 provide for the removal of entries from the register, on application to the register operator and on the register operator’s own initiative.

Regulations 30 to 35 provide for appeals to the First-tier Tribunal against the rejection of applications, and other decisions of the register operator, under these Regulations.

Regulation 36 provides that the provision of any information or document to the register operator under these Regulations for any purpose has effect only for that purpose. It also provides that decisions of the register operator under the Regulations may not be taken as indicating consent to or approval of particular works to be carried out on land.

Regulation 37 provides that copyright is not infringed where the register operator does anything which is necessary to comply with its obligations to place specified documents on the biodiversity gain site register or make them accessible to the public under regulation 4.

Regulations 38 to 40 contain provision about the way in which notices may be given by the register operator under these Regulations and about the postal address or email address to which such a notice is to be sent.

Regulation 41 provides for the Secretary of State to carry out periodic reviews of the regulatory provision (within the meaning of section 32 of the Small Business, Enterprise and Employment Act 2015) made by these Regulations.

The Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024 set fees for applications under these Regulations. They also give the register operator a power to impose a financial penalty where false or misleading information is supplied in connection with an application to register land in the biodiversity gain site register under these Regulations.

A full impact assessment has not been produced for this instrument because no, or no significant, impact on the private, voluntary or public sector is foreseen.

Footnotes

2021 c. 30. For definitions which apply for the purposes of section 100, see subsections (2) and (11) of that section.

1990 c. 8. Section 106 was substituted by section 12(1) of the Planning and Compensation Act 1991 (c. 34) and was amended by section 33 of the Greater London Authority Act 2007 (c. 24), section 174(2) of the Planning Act 2008 (c. 29), paragraph 3 of Schedule 2 to the Growth and Infrastructure Act 2013 (c. 27) and paragraph 3(13) of Schedule 14 to the Environment Act 2021.

By virtue of section 100(11) of the Environment Act 2021, “planning obligation” has the same meaning as in Schedule 7A to the Town and Country Planning Act 1990. See the amendment made to section 106(1) of the Town and Country Planning Act 1990 by paragraph 3(13) of Schedule 14 to the Environment Act 2021. Schedule 7A to the Town and Country Planning Act 1990 was inserted by paragraph 2 of Schedule 14 to the Environment Act 2021.

Natural England was established by section 1 of the Natural Environment and Rural Communities Act 2006 (c. 16).

For the meaning of “biodiversity gain site”, see section 100(2) of the Environment Act 2021.

For the meaning of “conservation covenant” see section 118(1) of the Environment Act 2021.

“Habitat enhancement” means enhancement of the biodiversity of habitat: see section 100(11) of the Environment Act 2021 and paragraph 12(2) of Schedule 7A to the Town and Country Planning Act 1990.

By virtue of section 100(11) of the Environment Act 2021, the expressions “development” and “planning permission” have the same meanings as in Schedule 7A to the Town and Country Planning Act 1990.

The local land charges register is kept by the Chief Land Registrar under section 3 of the Local Land Charges Act 1975 (c. 76) which was substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015 (c. 7). The “appropriate local land charges register” is the register of local land charges kept by a local authority where the Chief Land Registrar has not yet assumed functions relating to the registration of local land charges for the area of that local authority: see paragraph 40 of Schedule 5 to the Infrastructure Act 2015.

The biodiversity value of habitat enhancement recorded in the biodiversity gain site register and allocated to a development is measured in relation to that development under the biodiversity metric published under paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990: see paragraph 10 of that Schedule.

Section 9(4) of the Local Land Charges Act 1975 was amended by paragraph 84(3) of Schedule 4 to the Constitutional Reform Act 2005 (c. 4) and paragraph 8(5) of Schedule 5 to the Infrastructure Act 2015.

S.I. 2024/46.

2015 c. 26.

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.