Environment Bill (HC Bill 3)

(2) The Authority must make the representations or observations in
writing before the end of 10 working days beginning with the first
working day after the day on which it received a copy of the
application under paragraph 1(7) or 2(5) as the case may be.

(3) 5Sub-paragraph (4) applies where an application for permission to
bring an appeal has been granted and the Authority wishes to
make representations or observations to the CMA in relation to—

(a) the Authority’s reasons for the decision in relation to
which the appeal is being brought, and

(b) 10any grounds on which that appeal is being brought against
that decision.

(4) The Authority must make the representations or observations in
writing before the end of 15 working days beginning with the first
working day after the day on which permission to bring the
15appeal was granted.

(5) The Authority must send a copy of the representations and
observations it makes under this paragraph to the appellant.

Consideration and determination of appeal by group

4 (1) A group constituted by the chair of the CMA under Schedule 4 to
20the Enterprise and Regulatory Reform Act 2013 for the purpose of
carrying out functions of the CMA with respect to an appeal under
section 12D must consist of three members of the CMA panel.

(2) A decision of the group is effective if, and only if—

(a) all the members of the group are present when it is made,
25and

(b) at least two members of the group are in favour of the
decision.

Matters to be considered on appeal

5 (1) The CMA, if it thinks it necessary to do so for the purpose of
30securing the determination of an appeal within the period
provided for by section 12H, may disregard—

(a) any or all matters raised by an appellant that were not
raised by that appellant at the time of the relevant
application; and

(b) 35any or all matters raised by the Authority that were not
contained in representations or observations made for the
purposes of the appeal in accordance with paragraph 3.

(2) In this paragraph “relevant application” means an application
under paragraph 1 or 2.

40Production of documents etc

6 (1) For the purposes of this Schedule, the CMA may, by notice,
require—

(a) a person to produce to the CMA the documents specified
or otherwise identified in the notice;

(b) any person who carries on a business to supply to the CMA
such estimates, forecasts, returns or other information as
may be specified or described in the notice in relation to
that business.

(2) 5The power to require the production of a document, or the supply
of any estimate, forecast, return or other information, is a power to
require its production or, as the case may be, supply—

(a) at the time and place specified in the notice, and

(b) in a legible form.

(3) 10No person is to be compelled under this paragraph to produce a
document or supply an estimate, forecast, return or other
information that the person could not be compelled to produce in
civil proceedings in the High Court.

(4) An authorised member of the CMA may, for the purpose of the
15exercise of the functions of the CMA, make arrangements for
copies to be taken of a document produced or an estimate,
forecast, return or other information supplied under this
paragraph.

(5) A notice for the purposes of this paragraph—

(a) 20may be issued on the CMA’s behalf by an authorised
member of the CMA;

(b) must include information about the possible consequences
of not complying with the notice (as set out in paragraph
10).

25Oral hearings

7 (1) For the purposes of this Schedule an oral hearing may be held, and
evidence may be taken on oath—

(a) by a person considering an application for permission to
bring an appeal under paragraph 1,

(b) 30by a person considering an application for a direction
under paragraph 2, or

(c) by a group with the function of determining an appeal,

and, for that purpose, such a person or group may administer
oaths.

(2) 35The CMA may, by notice, require a person—

(a) to attend at a time and place specified in the notice, and

(b) at that time and place, to give evidence to a person or
group mentioned in sub-paragraph (1).

(3) At any oral hearing, the person or group conducting the hearing
40may require—

(a) the appellant, or the Authority, if present at the hearing to
give evidence or to make representations or observations,
or

(b) a person attending the hearing as a representative of the
45appellant or of the Authority to make representations or
observations.

(4) A person who gives oral evidence at the hearing may be cross-
examined by or on behalf of any party to the appeal.

(5) If the appellant, the Authority, or the appellant’s or Authority’s
representative is not present at a hearing—

(a) 5there is no requirement to give notice to that person under
sub-paragraph (2), and

(b) the person or group conducting the hearing may
determine the application or appeal without hearing that
person’s evidence, representations or observations.

(6) 10No person is to be compelled under this paragraph to give
evidence which that person could not be compelled to give in civil
proceedings in the High Court.

(7) Where a person is required under this paragraph to attend at a
place more than 10 miles from that person’s place of residence, an
15authorised member of the CMA must arrange for that person to be
paid the necessary expenses of attendance.

(8) A notice for the purposes of this paragraph may be issued on the
CMA’s behalf by an authorised member of the CMA.

Written statements

8 (1) 20The CMA may, by notice, require a person to produce a written
statement with respect to a matter specified in the notice to—

(a) a person who is considering, or is to consider, an
application for a direction under paragraph 2, or

(b) a group with the function of determining an appeal.

(2) 25The power to require the production of a written statement
includes power—

(a) to specify the time and place at which it is to be produced,
and

(b) to require it to be verified by a statement of truth,

30and a statement required to be so verified must be disregarded
unless it is so verified.

(3) No person is to be compelled under this paragraph to produce a
written statement with respect to any matter about which that
person could not be compelled to give evidence in civil
35proceedings in the High Court.

(4) A notice for the purposes of this paragraph may be issued on the
CMA’s behalf by an authorised member of the CMA.

Expert advice

9 Where permission to bring an appeal is granted under paragraph
401, the CMA may commission expert advice with respect to any
matter raised by a party to that appeal.

Defaults in relation to evidence

10 (1) This paragraph applies if a person (“the defaulter”)—

(a) fails to comply with a notice issued or other requirement
imposed under paragraph 6, 7 or 8,

(b) in complying with a notice under paragraph 8, makes a
statement that is false in any material particular, or

(c) 5in providing information verified in accordance with a
statement of truth required by appeal rules, provides
information that is false in a material particular.

(2) An authorised member of the CMA may certify the failure, or the
fact that such a false statement has been made or such false
10information has been given, to the High Court.

(3) The High Court may inquire into a matter certified to it under this
paragraph and if, after having heard—

(a) any witness against or on behalf of the defaulter, and

(b) any statement in the defaulter’s defence,

15it is satisfied that the defaulter, without reasonable excuse, failed
to comply with the notice or other requirement, or made the false
statement, or gave the false information, that court may punish
that defaulter as if the person had been guilty of contempt of court.

(4) Where the High Court has power under this paragraph to punish
20a body corporate for contempt of court, it may so punish any
director or other officer of that body (either instead of or as well as
punishing the body).

(5) A person who wilfully alters, suppresses or destroys a document
that the person has been required to produce under paragraph 6 is
25guilty of an offence and shall be liable—

(a) on summary conviction to a fine;

(b) on conviction on indictment, to imprisonment for a term
not exceeding two years or to a fine, or to both.

Appeal rules

11 (1) 30The CMA Board may make rules of procedure regulating the
conduct and disposal of appeals under section 12D.

(2) Those rules may include provision supplementing the provisions
of this Schedule in relation to any application, notice, hearing,
power or requirement for which this Schedule provides; and that
35provision may, in particular, impose time limits or other
restrictions on—

(a) the taking of evidence at an oral hearing, or

(b) the making of representations or observations at such a
hearing.

(3) 40The CMA Board must publish rules made under this paragraph in
a way it considers appropriate for bringing them to the attention
of those likely to be affected by them.

(4) Before making rules under this paragraph, the CMA Board must
consult such persons as it considers appropriate.

(5) 45Rules under this paragraph may make different provision for
different cases.

Costs

12 (1) A group that determines an appeal must make an order requiring
the payment to the CMA of the costs incurred by the CMA in
connection with the appeal.

(2) 5An order under sub-paragraph (1) must require those costs to be
paid—

(a) where the appeal is allowed in full, by the Authority,

(b) where the appeal is dismissed in full, by the appellant, or

(c) where the appeal is partially allowed, by one or more
10parties in such proportions as the CMA considers
appropriate in all the circumstances.

(3) The group that determines an appeal may also make such order as
it thinks fit for requiring a party to the appeal to make payments
to another party in respect of costs reasonably incurred by that
15other party in connection with the appeal.

(4) A person who is required by an order under this paragraph to pay
a sum to another person must comply with the order before the
end of the period of 28 days beginning with the day after the
making of the order.

(5) 20Sums required to be paid by an order under this paragraph but not
paid within the period mentioned in sub-paragraph (4) shall bear
interest at such rate as may be determined in accordance with
provision contained in the order.

(6) Any costs payable by virtue of an order under this paragraph and
25any interest that has not been paid may be recovered as a civil debt
by the person in whose favour that order is made.

Interpretation of Schedule

13 (1) In this Schedule—

• “appeal” means an appeal under section 12D;

• 30“appeal rules” means rules of procedure under paragraph 11;

• “authorised member of the CMA”—

  (a)

  in relation to a power exercisable in connection with
  an appeal in respect of which a group has been
  constituted by the chair of the CMA under Schedule 4
  35to the Enterprise and Regulatory Reform Act 2013,
  means a member of that group who has been
  authorised by the chair of the CMA to exercise that
  power;

  (b)

  in relation to a power exercisable in connection with
  40an application for permission to bring an appeal, or
  otherwise in connection with an appeal in respect of
  which a group has not been so constituted by the
  chair of the CMA, means—

  (i)

  any member of the CMA Board who is also a
  45member of the CMA panel, or

  Environment BillPage 205

  (ii)

  any member of the CMA panel authorised by
  the Secretary of State (whether generally or
  specifically) to exercise the power in question;

• “CMA Board” and “CMA panel” have the same meaning as
  5in Schedule 4 to the Enterprise and Regulatory Reform Act
  2013;

• “statement of truth”, in relation to the production of a
  statement or provision of information by a person, means
  a statement that the person believes the facts stated in the
  10statement or information to be true;

• “working day” means any day other than—

  (a)

  Saturday or Sunday;

  (b)

  Christmas Day or Good Friday;

  (c)

  a day which is a bank holiday in England and Wales
  15under the Banking and Financial Dealings Act 1971.

(2) References in this Schedule to a party to an appeal are references
to—

(a) the appellant, or

(b) the Authority.”

Section 88

20SCHEDULE 15 Biodiversity gain as condition for planning permission

Part 1 Biodiversity gain condition

1 In the Town and Country Planning Act 1990, after section 90 insert—

25““Biodiversity gain

90A Biodiversity gain in England

Schedule 7A makes provision for a general condition of planning
permission in England in relation to biodiversity gain.”

2 In that Act, after Schedule 7 insert—

““Schedule 7A 30Biodiversity gain in England

Part 1 Condition of planning permission relating to biodiversity gain

General condition of planning permission

1 (1) Every planning permission granted for the development of land in
35England shall be deemed to have been granted subject to the
condition in sub-paragraph (2).

(2) The condition is that the development may not be begun unless—

(a) the developer has submitted a biodiversity gain plan to the
planning authority (see paragraph 2), and

(b) the planning authority has approved the plan (see
5paragraph 3).

(3) In this Schedule, in relation to development for which planning
permission is granted—

• “developer” means the person entitled to carry out the
  development in accordance with the planning permission;

• 10“onsite habitat” means habitat on the land to which the
  planning permission relates;

• “planning authority” means the local planning authority,
  except that—

  (a)

  in a case where the planning permission is granted by
  15Mayoral development order under section 61DB,
  “planning authority” means such of the Mayor of
  London or the local planning authority as may be
  specified in the order;

  (b)

  in a case where the planning permission is granted by
  20the Secretary of State under section 62A, 76A or 77,
  “planning authority” means such of the Secretary of
  State or the local planning authority as the Secretary
  of State may determine;

  (c)

  in a case where the planning permission is granted on
  25an appeal under section 78, “planning authority”
  means such of the person determining the appeal or
  the local planning authority as that person may
  direct.

(4) In this Schedule, references to the grant of planning permission
30include the deemed grant of planning permission.

Biodiversity gain plan

2 (1) For the purposes of paragraph 1(2)(a), a biodiversity gain plan is a
plan which—

(a) relates to development for which planning permission is
35granted, and

(b) specifies the matters referred to in sub-paragraph (2).

(2) The matters are—

(a) information about the steps taken or to be taken to
minimise the adverse effect of the development on the
40biodiversity of the onsite habitat and any other habitat,

(b) the pre-development biodiversity value of the onsite
habitat,

(c) the post-development biodiversity value of the onsite
habitat,

(d) 45any registered offsite biodiversity gain allocated to the
development and the biodiversity value of that gain in
relation to the development,

(e) any biodiversity credits purchased for the development,
and

(f) such other matters as the Secretary of State may by
regulations specify.

(3) The Secretary of State may by regulations make provision about—

(a) any other matters to be included in a biodiversity gain
5plan;

(b) the form of a biodiversity gain plan;

(c) the procedure to be followed in relation to the submission
of a biodiversity gain plan (including the time by which a
plan must be submitted).

10Approval of biodiversity gain plan

3 (1) For the purposes of paragraph 1(2)(b) a planning authority to
which a biodiversity gain plan is submitted must approve the plan
if, and only if, it is satisfied as to the matters specified in sub-
paragraph (2).

(2) 15The matters are—

(a) that the pre-development biodiversity value of the onsite
habitat is as specified in the plan,

(b) that the post-development biodiversity value of the onsite
habitat is at least the value specified in the plan,

(c) 20that, in a case where any registered offsite biodiversity
gain is specified in the plan as allocated to the
development—

(i) the registered offsite biodiversity gain is so
allocated (and, if the allocation is conditional, that
25any conditions attaching to the allocation have
been met or will be met by the time the
development begins), and

(ii) the registered offsite biodiversity gain has the
value specified in the plan in relation to the
30development,

(d) that any biodiversity credits specified in the plan as
purchased for the development have been so purchased,

(e) that the biodiversity gain objective is met (see paragraph
4), and

(f) 35any other matters specified in the plan under paragraph
2(2)(f).

Biodiversity gain objective

4 (1) The biodiversity gain objective is met in relation to development
for which planning permission is granted if the biodiversity value
40attributable to the development exceeds the pre-development
biodiversity value of the onsite habitat by at least the relevant
percentage.

(2) The biodiversity value attributable to the development is the total
of—

(a) 45the post-development biodiversity value of the onsite
habitat, and

(b) the biodiversity value, in relation to the development, of
any registered offsite biodiversity gain allocated to the
development, and

(c) the biodiversity value of any biodiversity credits
5purchased for the development.

(3) The relevant percentage is 10%.

(4) The Secretary of State may by regulations amend this paragraph
so as to change the relevant percentage.

Regulations about determinations

5 10The Secretary of State may make regulations as to—

(a) the procedure which a planning authority is to follow in
determining whether to approve a biodiversity gain plan
(including the time by which a determination must be
made);

(b) 15factors which may or must be taken into account in making
such a determination;

(c) appeals relating to such a determination.

Exceptions

6 Paragraph 1 does not apply in relation to—

(a) 20development for which planning permission is granted—

(i) by a development order, or

(ii) under section 293A (urgent Crown development),
or

(b) development of such other description as the Secretary of
25State may by regulations specify.

Modifications for irreplaceable habitat

7 (1) The Secretary of State may by regulations make provision
modifying or excluding the application of this Part of this
Schedule in relation to any development for which planning
30permission is granted where the onsite habitat is “irreplaceable
habitat” as defined in the regulations.

(2) Regulations under this paragraph must make provision requiring,
in relation to any such development, the making of arrangements
for the purpose of minimising the adverse effect of the
35development on the biodiversity of the onsite habitat.

(3) Regulations under this paragraph may confer powers and duties,
including powers and duties in relation to the giving of guidance,
on Natural England.

Modifications for particular kinds of planning permission

8 (1) 40The Secretary of State may by regulations make provision
modifying the application of this Part of this Schedule in relation
to—

(a) the grant of outline planning permission, where the
reservation of matters for subsequent approval has the
effect of requiring or permitting development to proceed
in phases, or

(b) 5the grant of any kind of planning permission, where the
grant is subject to conditions (whether requiring the
subsequent approval of any matters or otherwise) having
that effect.

(2) Regulations under this paragraph may include provision for a
10grant of planning permission referred to in sub-paragraph (1)(a)
or (b) to be subject to conditions relating to meeting the
biodiversity gain objective referred to in paragraph 4.

9 (1) The Secretary of State may by regulations make provision
modifying or excluding the application of this Part of this
15Schedule in relation to development for which—

(a) planning permission is granted under section 73A
(planning permission for development already carried
out), or

(b) planning permission is granted by an order under 102
20(orders requiring discontinuance of use etc).

(2) Regulations under this paragraph may in particular include
provision—

(a) for the condition under paragraph 1 not to apply in
relation to the grant of planning permission referred to in
25sub-paragraph (1)(a) or (b);

(b) for the grant of any such planning permission to be subject
to other conditions relating to meeting the biodiversity
gain objective referred to in paragraph 4.

(3) The conditions referred to in sub-paragraph (2)(b) may include
30conditions requiring—

(a) enhancement of the biodiversity of land to which the
planning permission relates;

(b) the allocation of registered offsite biodiversity gain to any
development for which the planning permission is
35granted;

(c) the purchase of biodiversity credits for any such
development.

Further application of this Part

10 The Secretary of State may by regulations make provision to apply
40this Part of this Schedule in relation to development for which
planning permission is granted under section 141 or 177(1), with
such modifications or exclusions as may be specified in the
regulations.