The Biodiversity Gain Site Register Regulations 2024

PART 3 Registration of land in the biodiversity gain site register

How and when land may be registered in the biodiversity gain site register

5.—(1) Land may be registered in the biodiversity gain site register in relation to a conservation covenant(1) or a section 106 agreement.

(2) But the register operator may not register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement if the land or any part of it, or any land including it or any part of it, is already registered in the biodiversity gain site register in relation to that conservation covenant or section 106 agreement.

(3) In order for land to be registered in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement—

(a) the land must be eligible to be registered in relation to that conservation covenant or section 106 agreement (see regulation 6), and

(b) an application to register it in relation to that conservation covenant or section 106 agreement must be made to and accepted by the register operator (see regulations 7, 8 and 9).

(4) Where land is registered in the biodiversity gain site register in relation to a conservation covenant, that land or any part of it, or any land including it or any part of it, may also be registered (separately) in the biodiversity gain site register in relation to a section 106 agreement or a different conservation covenant (subject to paragraphs (2) and (3)).

(5) Where land is registered in the biodiversity gain site register in relation to a section 106 agreement, that land or any part of it, or any land including it or any part of it, may also be registered (separately) in the biodiversity gain site register in relation to a conservation covenant or a different section 106 agreement (subject to paragraphs (2) and (3)).

Land eligible to be registered

6.—(1) Land is eligible to be registered in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement if the conditions in paragraphs (2) to (7) are met.

(2) The first condition is that one or more persons are required under the conservation covenant or section 106 agreement to carry out works on the land for the purpose of habitat enhancement(2).

(3) The second condition is that one or more persons are required under the conservation covenant or section 106 agreement to maintain the habitat enhancement to be achieved by the required enhancement works on the land under the conservation covenant or section 106 agreement for at least 30 years after the completion of those works.

(4) The third condition is that one or more persons are required under the conservation covenant or section 106 agreement to monitor habitats on the land to ensure that the habitat enhancement to be achieved by the required enhancement works on the land under the conservation covenant or section 106 agreement is maintained for the period for which the conservation covenant or section 106 agreement requires it to be maintained.

(5) The fourth condition is that, for the purposes of Schedule 7A to the Town and Country Planning Act 1990, the habitat enhancement to be achieved by the required enhancement works on the land under the conservation covenant or section 106 agreement is made available to be allocated (conditionally or unconditionally, and whether for consideration or otherwise) in accordance with the terms of the covenant, or (as the case may be) in accordance with the terms of one or more planning obligations in the section 106 agreement, to one or more developments for which planning permission is granted(3).

(6) The fifth condition is that the land is in England.

(7) The sixth condition is that the conservation covenant or (as the case may be) the planning obligations in the section 106 agreement are registered in the local land charges register or the appropriate local land charges register(4).

(8) For the purposes of paragraphs (2), (3) and (4), a person is only to be regarded as being required under a section 106 agreement to carry out works on land, to maintain the habitat enhancement to be achieved by such works or to monitor habitats on land if that person is required to carry out those works, maintain that habitat enhancement or monitor those habitats (as the case may be) under one or more planning obligations in that section 106 agreement.

(9) In this regulation “the required enhancement works” on land under a conservation covenant or section 106 agreement are all of the works required to be carried out on that land for the purpose of habitat enhancement under that conservation covenant or (as the case may be) under the planning obligations in that section 106 agreement.

Applications to register land in the biodiversity gain site register

7.—(1) An application may be made to the register operator to register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement on the basis that the land is eligible under regulation 6 to be registered in relation to that conservation covenant or section 106 agreement.

(2) An application to register land in the biodiversity gain site register in relation to a conservation covenant may only be made by—

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

(b) a person who is required under the 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

(c) a person by whom a requirement referred to in sub-paragraph (a) or (b) is enforceable.

(3) The responsible body under a conservation covenant may not apply to register land in relation to that covenant.

(4) An application to register land in the biodiversity gain site register in relation to a section 106 agreement may only be made by a person who is required under a planning obligation in the section 106 agreement—

(a) to carry out works on the land for the purpose of habitat enhancement, or

(b) 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.

(5) An application to register land in the biodiversity gain site register may be withdrawn by the applicant, but the withdrawal of an application is effective only if the register operator receives a written notification of the withdrawal from the applicant before deciding whether to accept or reject the application.

Required content of application to register land in the biodiversity gain site register

8.—(1) An application to register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement must include—

(a) evidence that the applicant is entitled under regulation 7 to make the application;

(b) the information required by paragraph (2);

(c) the declaration required by paragraph (3);

(d) the documents required by paragraph (4).

(2) The information required by this paragraph to be included in an application to register land in relation to a particular conservation covenant or section 106 agreement is—

(a) the applicant’s name;

(b) an address to which notices under these Regulations in connection with the application may be sent by post to the applicant;

(c) an email address to which such notices may be sent to the applicant;

(d) information identifying the location and boundaries of the land to be registered (whether contained in a map or otherwise);

(e) where the required enhancement works on the land have already commenced, the date on which they commenced;

(f) the last date (if any) on which, under the terms of the conservation covenant or the planning obligations in the section 106 agreement, there will be any requirement in force to—

(i) carry out works on the land for the purpose of habitat enhancement, or

(ii) maintain any habitat enhancement to be achieved by works required to be carried out on the land for that purpose under the conservation covenant or (as the case may be) under the planning obligations in the section 106 agreement;

(g) where the required enhancement works on the land have not yet commenced—

(i) the type, size and condition of each habitat on the land, and

(ii) the projected type, size and condition of each habitat on the land as a result of those works;

(h) where the required enhancement works on the land have already commenced—

(i) the type, size and condition of each habitat on the land immediately before the commencement of those works, and

(ii) the projected type, size and condition of each habitat on the land as a result of those works;

(i) the name of each person by whom the requirement to carry out any of the required enhancement works on the land is enforceable;

(j) the name of each person by whom the requirement to maintain any of the habitat enhancement to be achieved by those works is enforceable;

(k) where any of the habitat enhancement to be achieved by the required enhancement works on the land has been allocated, in accordance with the terms of the conservation covenant or (as the case may be) the terms of a planning obligation in the section 106 agreement, to a development for which planning permission has been granted, the following information in relation to each such allocation—

(i) information identifying the development;

(ii) in relation to each habitat to which the allocated habitat enhancement relates, its projected type, size and condition as a result of the works required to be carried out on the land to achieve the allocated habitat enhancement under the conservation covenant or (as the case may be) under the planning obligations in the section 106 agreement;

(iii) the biodiversity value (for the purposes of Schedule 7A to the Town and Country Planning Act 1990) of the allocated habitat enhancement in relation to the development(5).

(3) The required declaration is a declaration by the applicant that—

(a) where the required enhancement works on the land have already commenced, any consent, licence or other permission necessary for the purpose of carrying out those works was obtained, or

(b) where the required enhancement works on the land have not yet commenced, any consent, licence or other permission necessary for the purpose of carrying out those works will be obtained before the works are commenced.

(4) The required documents are—

(a) where the application is to register land in relation to a conservation covenant, a copy of—

(i) the conservation covenant agreement containing that covenant, in the form the agreement was in when executed under section 117 of the Environment Act 2021;

(ii) every agreement discharging an obligation under the covenant or discharging any of the land, or any estate in any of the land, from an obligation under the covenant;

(iii) every agreement modifying an obligation under the covenant;

(iv) every agreement appointing a person to replace a responsible body under the covenant;

(v) every order of the Upper Tribunal modifying or discharging an obligation under the covenant;

(vi) every other decision of a court or tribunal about the effect of the covenant;

(vii) every other document which describes any of the required enhancement works on the land and has been produced in accordance with the terms of the conservation covenant;

(b) where the application is to register land in relation to a section 106 agreement, a copy of—

(i) the section 106 agreement in the form it was in when entered into under section 106 of the Town and Country Planning Act 1990;

(ii) every agreement modifying or discharging a planning obligation in the section 106 agreement;

(iii) every determination, notice or other instrument having the effect of modifying or discharging a planning obligation in the section 106 agreement;

(iv) every instrument by which the section 106 agreement has otherwise been amended;

(v) every decision of a court or tribunal about the effect of a planning obligation in the section 106 agreement;

(vi) every other document which describes any of the required enhancement works on the land and has been produced in accordance with the terms of a planning obligation in the section 106 agreement;

(c) a copy of every agreement or other document which has been entered into or produced pursuant to the terms of the conservation covenant or a planning obligation in the section 106 agreement and which describes things to be done in relation to the land for the purpose of—

(i) maintaining any habitat enhancement to be achieved by the required enhancement works on the land, or

(ii) monitoring habitats on the land to ensure that any habitat enhancement to be achieved by the required enhancement works on the land is maintained for the period for which it is required to be maintained under the conservation covenant or a planning obligation in the section 106 agreement;

(d) a copy of an official search certificate issued under section 9(4) of the Local Land Charges Act 1975(6) showing the particulars of the registration of the conservation covenant, or (as the case may be) the planning obligations in the section 106 agreement, in the local land charges register or the appropriate local land charges register.

(5) In paragraph (2)(g), (h) and (k)(ii)—

(a) references to a habitat’s “type” are to any habitat classification applicable to it for the purposes of the biodiversity metric;

(b) references to a habitat’s “size” are to—

(i) in the case of a linear habitat, its length in kilometres;

(ii) in the case of a habitat which is not a linear habitat, its area in hectares;

(c) references to a habitat’s “condition” are to its condition within the meaning that expression has for the purposes of the biodiversity metric.

(6) For the purposes of paragraph (5)(b), a “linear habitat” is any type of habitat required, for the purposes of a calculation under the biodiversity metric, to be measured according to length rather than area.

(7) In this regulation—

“the biodiversity metric” means the biodiversity metric published by the Secretary of State under paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990;

“the required enhancement works” on land means, in relation to land which is the subject of an application to which this regulation applies, the works required to be carried out on the land for the purpose of habitat enhancement under—

(a)

where the application relates to a conservation covenant, the conservation covenant, or

(b)

where the application relates to a section 106 agreement, the planning obligations in the section 106 agreement.

Determination of application to register land in the biodiversity gain site register

9.—(1) This regulation applies where the register operator has received an application to register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement.

(2) If the register operator does not receive payment of a fee for the application in accordance with the Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024(7), the register operator must reject the application.

(3) The following provisions of this regulation apply where the register operator has received payment of a fee for the application in accordance with those Regulations.

(4) Subject to paragraph (12), the register operator must consider the application and must, in accordance with the following provisions of this regulation, either accept or reject it.

(5) Subject to the following provisions of this regulation, the application must be accepted if—

(a) it appears to the register operator that the application includes—

(i) the evidence, other information and documents required by regulation 8(1)(a), (2) and (4), and

(ii) a declaration under regulation 8(3), and

(b) the register operator is satisfied that—

(i) the land is eligible under regulation 6 to be registered in relation to the conservation covenant or section 106 agreement in question, and

(ii) the applicant is entitled under regulation 7 to make the application.

(6) The register operator may, by giving notice to the applicant, request any information it needs in order to determine whether it is required by paragraph (5) to accept the application.

(7) Where, having given notice under paragraph (6) requesting information from the applicant, the register operator is satisfied that it has received all of the information requested by that notice, the register operator must as soon as practicable give notice to the applicant informing the applicant that it is so satisfied.

(8) The application must be rejected—

(a) if the land or any part of it, or any land including it or any part of it, is already registered in the biodiversity gain site register in relation to the conservation covenant or section 106 agreement,

(b) if—

(i) it does not appear to the register operator as mentioned in paragraph (5)(a), or

(ii) the register operator is not satisfied as mentioned in paragraph (5)(b),

and the register operator has decided not to make a request (or a further request) for information under paragraph (6), or

(c) if register operator considers that false or misleading information has been supplied to it in connection with the application.

(9) Where the register operator decides that it is necessary, for the purposes of considering the application, to investigate whether any information supplied to it in connection with the application is false or misleading, it must—

(a) give notice to the applicant as soon as practicable informing the applicant that it has so decided, and

(b) as soon as practicable after concluding the investigation, give notice to the applicant that it has concluded the investigation,

and a notice under this paragraph must state the date on which the decision was made or the investigation was concluded (as the case may be).

(10) The register operator may reject the application if—

(a) it has given notice under paragraph (6) requesting information from the applicant,

(b) a period of three months beginning with the day on which the notice was given has expired, and

(c) the register operator has not been provided with the requested information.

(11) A notice under paragraph (6) must explain the effect of paragraph (10).

(12) Paragraph (4) ceases to apply in relation to the application if the application is withdrawn (see regulation 7(5)).

Register operator to give notice when application to register land is rejected

10.—(1) This regulation applies where the register operator rejects an application to register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement.

(2) The register operator must, as soon as practicable, give notice to the applicant that it has rejected the application.

(3) The notice must—

(a) give reasons for the register operator’s decision to reject the application, and

(b) contain information about the right of appeal under regulation 30(1).

Register operator’s duties when application to register land is accepted

11.—(1) This regulation applies where the register operator accepts an application to register land in the biodiversity gain site register in relation to a particular conservation covenant or section 106 agreement.

(2) The register operator must, as soon as practicable—

(a) create an entry in the biodiversity gain site register for the purpose of registering the land in relation to the conservation covenant or section 106 agreement,

(b) assign a unique registration number to the entry,

(c) register the land by complying with the requirements of paragraph (3), and

(d) where information was included in the application under regulation 8(2)(k) in relation to the allocation of any habitat enhancement to a development, record in the entry each such allocation of habitat enhancement and the information relating to it included in the application under that regulation.

(3) The requirements of this paragraph for the registration of land under paragraph (2)(c) are that the register operator must—

(a) record in the entry created for the land under paragraph (2)(a)—

(i) the information identifying the location and boundaries of the land included under regulation 8(2)(d) in the application to register the land, except where the information was contained in a map or other document included in the application, and

(ii) the information included in the application under regulation 8(2)(e) to (j), and

(b) place on the register any map or other document included in the application under regulation 8(2)(d).

(4) As soon as practicable after registering the land in relation to the conservation covenant or section 106 agreement in question, the register operator must give notice to the applicant that the application to register the land in relation to that conservation covenant or section 106 agreement has been accepted.

(5) The notice under paragraph (4) must include the registration number assigned under paragraph (2)(b) to the entry created for the land under paragraph (2)(a).

(6) The register operator must ensure that the information placed on the register under paragraphs (2)(d) and (3)(a), and any document placed on the register under paragraph (3)(b), are readily accessible by reference to the registration number assigned under paragraph (2)(b).

(1)

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

(2)

“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.

(3)

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.

(4)

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.

(5)

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.

(6)

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.

(7)

S.I. 2024/46.