Environment Bill (HC Bill 3)

Part 2 Interpretation of terms relating to biodiversity value

Introductory

11 Paragraphs 12 to 19 apply for the purposes of this Schedule.

5Biodiversity value and the biodiversity metric

12 References to the biodiversity value of any habitat are to its value
as calculated in accordance with the biodiversity metric.

13 (1) The biodiversity metric is a document for measuring the relative
biodiversity value of habitat for the purposes of this Schedule.

(2) 10The biodiversity metric is to be produced and published by the
Secretary of State.

(3) The Secretary of State may from time to time revise and republish
the biodiversity metric.

(4) Before publishing or republishing the biodiversity metric the
15Secretary of State must consult such persons as the Secretary of
State considers appropriate.

(5) The Secretary of State may by regulations make transitional
provision in relation to the revision and republication of the
biodiversity metric.

20Pre-development biodiversity value

14 (1) In relation to any development for which planning permission is
granted, the pre-development biodiversity value of the onsite
habitat is the biodiversity value of the onsite habitat on the
relevant date.

(2) 25The relevant date is—

(a) in a case in which planning permission is granted on
application, the date of the application, and

(b) in any other case, the date on which the planning
permission is granted.

(3) 30But the developer and the planning authority may agree that the
relevant date is to be a date earlier than that specified in sub-
paragraph (2)(a) or (b) (but not a date which is before the day on
which this Schedule comes into force in relation to the
development).

(4) 35This paragraph is subject to paragraph 15.

15 If—

(a) a person carries on activities on land on or after 15 October
2019 otherwise than in accordance with—

(i) planning permission, or

(ii) 40any other permission of a kind specified by the
Secretary of State by regulations, and

(b) as a result of the activities the biodiversity value of the
onsite habitat referred to in paragraph 14(1) is lower on the
relevant date than it would otherwise have been,

the pre-development biodiversity value of the onsite habitat is to
5be taken to be its biodiversity value immediately before the
carrying on of the activities.

Post-development biodiversity value

16 (1) In relation to any development for which planning permission is
granted, the post-development biodiversity value of the onsite
10habitat is the projected value of the onsite habitat as at the time the
development is completed.

(2) That value is to be calculated by taking the pre-development
biodiversity value and—

(a) if at the time the development is completed the
15development will, taken as a whole, have increased the
biodiversity value of the onsite habitat, adding the amount
of that increase, or

(b) if at the time the development is completed the
development will, taken as a whole, have decreased the
20biodiversity value of the onsite habitat, subtracting the
amount of that decrease.

This is subject to paragraph 17.

17 (1) This paragraph applies in relation to any development for which
planning permission is granted where—

(a) 25the developer proposes to carry out works in the course of
the development that increase the biodiversity value of the
onsite habitat, and

(b) the planning authority considers that the increase is
significant in relation to the pre-development biodiversity
30value.

(2) The increase in biodiversity value referred to in sub-paragraph (1)
is to be taken into account in calculating the post-development
biodiversity value of the onsite habitat only if the planning
authority is satisfied that the condition in sub-paragraph (3) is
35met.

(3) The condition is that any biodiversity enhancement resulting from
the works referred to in sub-paragraph (1)(a) will, by virtue of—

(a) a condition subject to which the planning permission is
granted,

(b) 40a planning obligation, or

(c) a conservation covenant,

be maintained for at least 30 years after the development is
completed.

Registered offsite biodiversity gains

18 (1) 45“Registered offsite biodiversity gain” means any enhancement to
the biodiversity of habitat on land, where—

(a) the enhancement is required to be carried out under a
conservation covenant or planning obligation, and

(b) the enhancement is recorded in the biodiversity gains site
register (as to which, see Part 3 of this Schedule).

(2) 5References to the allocation of registered offsite biodiversity gain
are to its allocation in accordance with the terms of the
conservation covenant or planning obligation referred to in sub-
paragraph (1)(a).

(3) The biodiversity value of registered offsite biodiversity gain is
10measured, under the biodiversity metric, in relation to
development to which it is allocated.

Biodiversity credits

19 “Biodiversity credits” means credits under Part 4 of this Schedule.

Part 3 15Registration of biodiversity gain sites

Register of biodiversity gain sites

20 (1) The Secretary of State may by regulations make provision for and
in relation to a register of biodiversity gains sites (“the biodiversity
gains site register”).

(2) 20A biodiversity gains site is land where—

(a) a person is required to carry out works to enhance the
biodiversity of the habitat on the land under a
conservation covenant or planning obligation,

(b) that or another person is required to maintain the
25enhancement for at least 30 years after the completion of
those works, and

(c) for the purposes of this Schedule the enhancement is made
available to be allocated (conditionally or unconditionally,
and whether for consideration or otherwise) in accordance
30with the terms of the covenant or obligation to one or more
developments for which planning permission is granted.

(3) Regulations under this paragraph must provide for the
information in the register to be accessible to members of the
public.

21 (1) 35Regulations under paragraph 20 may in particular make provision
about—

(a) the person who is to establish and maintain the
biodiversity gains site register (who may be the Secretary
of State, Natural England or another person);

(b) 40circumstances in which land is or is not eligible to be
registered;

(c) applications to register land in the register;

(d) the information to be recorded in relation to any land that
is registered;

(e) amendments to the register;

(f) removal of land from the register;

(g) fees payable in respect of any application under the
regulations.

(2) 5Provision under sub-paragraph (1)(c) may in particular include
provision about—

(a) who is entitled to apply to register land in the biodiversity
gains site register;

(b) the procedure to be followed in making an application;

(c) 10the information to be provided in respect of an application;

(d) how an application is to be determined;

(e) appeals against the rejection of an application;

(f) penalties for the supply of false or misleading information
in connection with an application.

(3) 15Provision under sub-paragraph (1)(d) may in particular require
the recording of the following in relation to any land registered in
the biodiversity gains site register—

(a) the location and area of the land;

(b) the works to be carried out on the land and the biodiversity
20enhancement to be achieved by them;

(c) information about the habitat of the land before the
commencement of those works;

(d) the person who applied to register the land and (if
different) the person by whom the requirement to carry
25out the works is enforceable;

(e) any development to which any of the biodiversity
enhancement has been allocated;

(f) the biodiversity value of any such enhancement in relation
to any such development.

30Part 4 Biodiversity credits

Sale of biodiversity credits by Secretary of State

22 (1) The Secretary of State may make arrangements under which a person
entitled to carry out the development of any land may purchase a credit
35from the Secretary of State for the purpose of meeting the biodiversity
gain objective referred to in paragraph 4.

(2) A credit is to be regarded for the purposes of this Schedule as
having such biodiversity value as is determined under the
arrangements.

(3) 40The arrangements may in particular include arrangements
relating to—

(a) applications to purchase credits;

(b) the amount payable in respect of a credit of a given value;

(c) proof of purchase;

(d) reimbursement for credits purchased for development
which is not carried out.

(4) In determining the amount payable under the arrangements for a
credit of a given value the Secretary of State must have regard to
5the need to determine an amount which does not discourage the
registration of land in the biodiversity gain sites register.

(5) The Secretary of State must publish information about the
arrangements, including in particular the amount payable for
credits.

10Proceeds of sale of biodiversity credits

23 (1) The Secretary of State may use payments received under
arrangements under paragraph 22 only for the following
purposes—

(a) carrying out works, or securing the carrying out of works,
15to enhance the biodiversity of habitat on land in England;

(b) purchasing interests in land in England with a view to
carrying out works, or securing the carrying out of works,
to enhance the biodiversity of the habitat on that land;

(c) operating or administering the arrangements.

(2) 20The references to works in sub-paragraph (1) do not include works
which the Secretary of State is required to carry out apart from this
paragraph by virtue of any enactment.

Reports

24 (1) The Secretary of State must publish reports relating to the
25discharge of the Secretary of State’s functions under paragraphs
22 and 23.

(2) A report must relate to a period not exceeding a year which—

(a) in the case of the first report, begins on the date on which
this Schedule comes into force in relation to any
30development, and

(b) in the case of any subsequent report, begins on the day
after the last day of the period to which the previous report
related.

(3) A report must set out—

(a) 35the total payments received under arrangements under
paragraph 22 in the period to which the report relates, and

(b) how those payments have been used.”

Part 2 Consequential amendments

3 (1) 40The Town and Country Planning Act 1990 is amended as follows.

(2) In section 56 (time when development begins), in subsection (3), at the end
insert “and paragraph 1 of Schedule 7A”.

(3) In section 69 (register of applications etc)—

(a) in subsection (1), at the end insert—

“(e) applications for approval of biodiversity gain plans
under Part 1 of Schedule 7A.”;

(b) 5in subsection (2)(a), for “and (aza)” substitute “, (aza) and (e)”.

(4) In section 70 (determination of applications: general conditions), in
subsection (1)(a), after “section 62D(5)” insert “, paragraph 1 of Schedule
7A”.

(5) In section 73 (determination of applications to develop land after non-
10compliance), after subsection (2A) insert—

“(2B) Nothing in this section authorises the disapplication of the condition
under paragraph 1 of Schedule 7A (biodiversity gain condition).

(2C) Subsection (2D) applies where—

(a) for the purposes of paragraph 1 of Schedule 7A a biodiversity
15gain plan was approved in relation to the previous planning
permission (“the earlier biodiversity gain plan”),

(b) planning permission is granted under this section, and

(c) the conditions subject to which the planning permission is
granted under this section do not affect the post-
20development biodiversity value of the onsite habitat as
specified in the earlier biodiversity gain plan.

(2D) Where this subsection applies, the earlier biodiversity gain plan is
regarded as approved for the purposes of paragraph 1 of Schedule
7A in relation to the planning permission granted under this
25section.”

(6) In section 74A (deemed discharge of planning permission conditions), after
subsection (2) insert—

“(2A) But this section does not apply to the condition under paragraph 1 of
Schedule 7A (biodiversity gain condition).”

(7) 30In section 76C (provisions applying to applications made under section
62A), in subsection (2), after “Schedule 1” insert “, or by regulations under
paragraph 2(3) or 5 of Schedule 7A,”.

(8) In section 84 (simplified planning zone schemes: conditions and limitations
on planning permission), at the end insert—

“(5) 35A simplified planning zone scheme may not disapply the condition
under paragraph 1 of Schedule 7A (biodiversity gain condition).”

(9) In section 88 (enterprise zones), after subsection (3) insert—

“(3A) Subsection (3) is subject to paragraph 1 of Schedule 7A (biodiversity
gain condition).”

(10) 40In section 96A (power to make non-material changes to planning
permission), after subsection (3) insert—

“(3A) The conditions referred to in subsection (3)(b) do not include the
condition under paragraph 1 of Schedule 7A (biodiversity gain
condition).”

(11) In section 97 (revocation or modification of planning permission), at the end
insert—

“(7) Subsection (1) does not permit the revocation or modification of the
condition under paragraph 1 of Schedule 7A (the biodiversity gain
5condition), subject as follows.

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

(a) for the condition under paragraph 1 of Schedule 7A to apply
in relation to the modification of planning permission under
this section, subject to such modifications as may be specified
10in the regulations;

(b) for planning permission modified under this section to be
subject to other conditions relating to meeting the
biodiversity gain objective referred to in paragraph 4 of
Schedule 7A (and section 73A(6) applies in relation to
15conditions under this paragraph).”

(12) In section 100ZA (restriction on power to impose planning conditions in
England), in subsection (13)(c), after “limitation” insert “but do not include
the condition under paragraph 1 of Schedule 7A (biodiversity gain
condition)”.

(13) 20In section 106 (planning obligations), in subsection (1), in the words before
paragraph (a), after “106C” insert “, Schedule 7A”.

(14) In section 106A (modification and discharge of planning obligations), after
subsection (6) insert—

“(6A) Except in such cases as may be prescribed, the authority may not
25under subsection (6) discharge or modify the planning obligation if
the authority considers that doing so would—

(a) prevent the biodiversity gain objective referred to in
paragraph 4 of Schedule 7A from being met in relation to any
development, or

(b) 30give rise to a significant risk of that objective not being met in
relation to any development.”

(15) In section 333 (regulations and orders), after subsection (3A) insert—

“(3AA) No regulations may be made under paragraph 4(4), 21(1)(g) or
21(2)(f) of Schedule 7A (biodiversity gain condition) unless a draft of
35the instrument containing the regulations has been laid before, and
approved by a resolution of, each House of Parliament.”

Section 96

SCHEDULE 16 Controlling the felling of trees in England

Introductory

1 40Part 2 of the Forestry Act 1967 (power to control felling of trees) is amended
as follows.

Penalty for felling without licence: increase of fine

2 In section 17(1) (penalty for felling without a licence)—

(a) after “and” insert—

“(a) in relation to an offence committed in Wales,”;

(b) 5at the end insert “, or

“(b) in relation to an offence committed in England, liable
on summary conviction to a fine.”

Restocking notices to be local land charges

3 In section 17A (power to require restocking after unauthorised felling), after
10subsection (1A) insert—

“(1B) A restocking notice served by the Commissioners is a local land
charge; and for the purposes of the Local Land Charges Act 1975 the
Commissioners are the originating authority as respects the charge.”

Enforcement notices to be local land charges

4 15In section 24 (notice to require compliance with conditions or directions), at
the end insert—

“(6) A notice under this section given by the Commissioners is a local
land charge; and for the purposes of the Local Land Charges Act 1975
the Commissioners are the originating authority as respects the
20charge.”

Further enforcement notices for new estate or interest holders

5 (1) In section 17C (enforcement of restocking notice), after “directions),” insert
“24A (further notice under section 24 for next estate or interest holders),”.

(2) After section 24 insert—

“24A 25Further notice under section 24 for next estate or interest holders

(1) Subsection (2) applies where—

(a) a notice has been given to a person under section 24 to require
compliance with the conditions of a felling licence in relation
to land in England,

(b) 30steps required by the notice have not been taken, and

(c) before the time specified in the notice has expired, the person
ceases to have the estate or interest in the land by reference to
which the notice was served.

(2) The Commissioners may give to the next estate or interest holder a
35further notice under section 24 requiring the steps that were not
completed under the notice described in subsection (1) to be
completed.

(3) In subsection (2) the “next estate or interest holder” means the person
who has an estate or interest in the land as is referred to in section
4010(1) immediately after the person referred to in subsection (1)
ceased to have the estate or interest referred to in subsection (1)(c).

(4) The reference in subsection (1) to a notice under section 24 includes
a notice given under subsection (2).”

Power of court to order restocking after conviction for failure to comply with enforcement notice

6 After section 24A (inserted by paragraph 5) insert—

“24B 5Restocking orders after conviction under section 24 in England

(1) This section applies where a person has been convicted of an offence
under section 24(4) in England in relation to a failure to take steps
required by a notice given under section 24 to remedy a default in the
case of non-compliance with—

(a) 10the conditions of a felling licence that relate to the restocking
or stocking of land with trees, or

(b) the requirements of a restocking notice.

(2) The court may make a restocking order.

(3) A restocking order is an order that requires the person to take such
15steps as may be specified therein to be taken within such time as may
be so specified—

(a) to restock or stock with trees the land in respect of which the
notice under section 24 was given, or such other land as the
court considers appropriate, and

(b) 20to maintain those trees in accordance with the rules and
practice of good forestry for a period not exceeding ten years
specified in the order.

(4) In deciding whether to make a restocking order the court must have
regard to—

(a) 25the interests of good forestry and agriculture and of the
amenities of the district to which the restocking order would
relate, and

(b) the desirability of promoting the establishment and
maintenance of adequate reserves of growing trees in
30England.

(5) Section 63(3) of the Magistrates’ Courts Act 1980 (power of
magistrates’ court to deal with person for breach of order etc) applies
in relation to a restocking order.”

Service of notices on directors of companies that have estates or interests in land

7 (1) 35Section 30 (service of documents) is amended as follows.

(2) In subsection (2), at the end insert “or, in the case of service by the
Commissioners, upon a director of the company or body”.

(3) In subsection (3), after “clerk” insert “or director”.

Requiring information from the owner of land

8 40In section 30(5) (power to require information regarding interests in land),
after the second “land” insert “, and the owner of any land in England”.

Section 111

SCHEDULE 17 Discharge or modification of obligations under conservation covenants

Part 1 Discharge by Upper Tribunal

5Power to discharge on application by landowner or responsible body

1 (1) The Upper Tribunal may, on the application of a person bound by, or
entitled to the benefit of, an obligation under a conservation covenant by
virtue of being the holder of an estate in land, by order discharge the
obligation in respect of any of the land to which it relates.

(2) 10The Upper Tribunal must add as party to the proceedings on an application
under sub-paragraph (1) the responsible body under the covenant.

2 (1) The Upper Tribunal may, on the application of the responsible body under
a conservation covenant, by order discharge an obligation under the
covenant in respect of any of the land to which it relates.

(2) 15The Upper Tribunal must add as party to the proceedings on an application
under sub-paragraph (1) any person who, by virtue of being the holder of an
estate in land, is bound by, or entitled to the benefit of, the obligation to
which the application relates.

Deciding whether to discharge

3 (1) 20The Upper Tribunal may exercise its power under paragraph 1(1) or 2(1) if
it considers it reasonable to do so in all the circumstances of the case.

(2) In considering whether to exercise its power under paragraph 1(1) or 2(1),
the matters to which the Upper Tribunal is to have regard include—

(a) whether there has been any material change of circumstance since
25the making of the original agreement, in particular—

(i) change in the character of the land to which the obligation
relates or of the neighbourhood of that land;

(ii) change affecting the enjoyment of the land to which the
obligation relates;

(iii) 30change affecting the extent to which performance of the
obligation is, or is likely in future to be, affordable;

(iv) change affecting the extent to which performance of the
obligation is, or is likely in future to be, practicable;

(b) whether the obligation serves any conservation purpose it had—

(i) 35when the original agreement was entered into, or

(ii) if the obligation has since been modified (whether by
agreement or by the Upper Tribunal), when the obligation
was modified,

as the case may be; and

(c) 40whether the obligation serves the public good.

(3) In considering whether to exercise its power under paragraph 1(1), the
matters to which the Upper Tribunal is to have regard also include—