Is there a right to appeal against refusal of a Biodiversity Gain Plan?
If an application for the approval of the Biodiversity Gain Plan is refused by the local planning authority (acting as the planning authority for the plan), the person submitting the plan may appeal to the Secretary of State against the decision, under section 78 of the Town and Country Planning Act 1990.
Before making any appeal, the person submitting the plan is encouraged to first consider re-engaging with the local planning authority to discuss whether any changes to the plan would make it more acceptable.
There is no right to appeal where a Biodiversity Gain Plan is refused by the Secretary of State, (as the planning authority for the plan). Secretary of State decisions can only be challenged on certain statutory grounds, where a challenge is brought within 6 weeks of the decision under section 288 of the Town and Country Planning Act 1990.
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Is there a right of appeal if the local planning authority does not make a decision on a Biodiversity Gain Plan within the statutory time period?
The person submitting the Biodiversity Gain Plan for approval may appeal under section 78 of the Town and Country Planning Act 1990 if the local planning authority (acting as the planning authority for the plan), does not make a decision within 8 weeks, or another period where there is a written agreement from the planning authority and person submitting the Biodiversity Gain Plan to extend the decision-making period.
However, applicants should first consider engaging with the local planning authority to establish when the plan might be decided, before deciding whether to appeal against non-determination.
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What is the deadline for submitting an appeal against refusal, or where no decision has been made on the Biodiversity Gain Plan?
Appeals may be made at any time within 6 months of the decision on the Biodiversity Gain Plan or, if no decision has been made, within 6 months from when a decision should have been given.
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Who decides the appeal on a Biodiversity Gain Plan?
Appeals on a Biodiversity Gain Plan are, in the first instance, determined by Planning Inspectors on behalf of the Secretary of State. However, the Secretary of State has the power to make the decision on an appeal rather than it being made by the Planning Inspectorate – this is referred to as a ‘recovered appeal’.
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When an appeal is brought on a Biodiversity Gain Plan, what needs to be sent to the Planning Inspectorate?
All appeals relating to a Biodiversity Gain Plan must be submitted using a completed appeal form, obtained from the Secretary of State and accompanied by the relevant application documents contained in Article 37E of the Town and Country Planning (Development Management Procedure) (England) Order 2015, these are:
the Biodiversity Gain Plan, to which the appeal relates;
a copy of the planning application sent to the local planning authority, to which the Biodiversity Gain Plan relates, and all plans, drawing and documents sent to the local planning authority relating to that application;
all correspondence with the local planning authority relating to the determination whether to approve the Biodiversity Gain Plan; and
the notice of the determination whether to approve the Biodiversity Gain Plan, if any;
except where a direction by the Secretary of State under section 321(3) of the Town and Country Planning Act 1990 has been given:
i. the full statement of case of the person who submitted the Biodiversity Gain Plan;
ii. a statement of which procedure (written representations, a hearing or inquiry) the person who submitted the Biodiversity Gain Plan considers should be used to determine the appeal;
iii. a draft statement of common ground if the person submitting the Biodiversity Gain Plan considers that the appeal should be determined through a hearing or an inquiry.
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When an appeal is brought on a Biodiversity Gain Plan, what needs to be sent to the local planning authority who determined the plan?
The person submitting the appeal to the Biodiversity Gain Plan must provide the relevant local planning authority (who made the decision on Biodiversity Gain Plan), the following documents when an appeal is made on a Biodiversity Gain:
the completed appeal form;
except where a direction by the Secretary of State under section 321(3) of the Town and Country Planning Act 1990 has been given:
i. the full statement of case of the person who submitted the Biodiversity Gain Plan;
ii. a statement of which procedure (written representations, a hearing or inquiry) the person who submitted the Biodiversity Gain Plan considers should be used to determine the appeal; and
iii. a draft statement of common ground if the person submitting the Biodiversity Gain Plan considers that the appeal should be determined through a hearing or an inquiry.
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How are appeals determined on Biodiversity Gain Plans?
Appeals on Biodiversity Gain Plans will be determined as if the application for permission had been made to the Secretary of State in the first instance.
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What procedure will the appeal on a Biodiversity Gain Plan follow?
The procedure to be followed at the appeal will depend on the complexity of the matters to be considered and will be determined by the Planning Inspectorate (more information is available on the Planning Inspectorate Procedural Guide. These can either be written representations, inquiries or hearings.
The person submitting the Biodiversity Gain Plan will be asked to indicate their view of the most appropriate procedure for their case, however the appointed planning inspector may determine a different procedure to be used.
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Can an appeal decision on a Biodiversity Gain Plan be challenged?
Appeal decisions can only be challenged through the courts on certain statutory grounds, and a challenge must be brought within 6 weeks of the decision under section 288 of the Town and Country Planning Act 1990.
Further information about applications under section 288 of the Town and Country Planning Act 1990 can be found in the Administrative Court Judicial Review Guide 2023.