SCHEDULE 13 Modifying water and sewerage undertakers’ appointments: procedure for appeals
Section 86
SCHEDULE 2ZA
Procedure for appeals under section 12D
Section 12E
Application for permission to bring appeal
1 (1) An application for permission to bring an appeal may be made only by sending a notice to the CMA requesting the permission.
(2) Only a person entitled under section 12D to bring the appeal if permission is granted may apply for permission.
(3) Where the Authority publishes a decision to modify the conditions of any appointment under section 12A(9), any application for permission to appeal is not to be made after the end of 20 working days beginning with the first working day after the day on which the decision is published.
(4) An application for permission to appeal must be accompanied by all such information as may be required by appeal rules.
(5) Appeal rules may require information contained in an application for permission to appeal to be verified by a statement of truth.
(6) A person who applies for permission to bring an appeal in accordance with this paragraph is referred to in this Schedule as the appellant.
(7) The appellant must send the Authority—
(a) a copy of the application for permission to appeal at the same time as it is sent to the CMA, and
(b) such other information as may be required by appeal rules.
(8) The CMA’s decision whether to grant permission to appeal is to be taken by an authorised member of the CMA.
(9) Before the authorised member decides whether to grant permission under this paragraph, the Authority must be given an opportunity of making representations or observations, in accordance with paragraph 3(2).
(10) The CMA’s decision on an application for permission to appeal must be made—
(a) where the Authority makes representations or observations in accordance with paragraph 3(2), before the end of 10 working days beginning with the first working day after the day on which those representations or observations are received;
(b) in any other case, before the end of 14 working days beginning with the first working day after the day on which the application for permission was received.
(11) The grant of permission may be made subject to conditions, which may include—
(a) conditions which limit the matters that are to be considered on the appeal in question,
(b) conditions for the purpose of expediting the determination of the appeal, and
(c) conditions requiring that appeal to be considered together with other appeals (including appeals relating to different matters or decisions and appeals brought by different persons).
(12) Where a decision is made to grant or to refuse an application for permission, an authorised member of the CMA must notify the decision, giving reasons—
(a) to the appellant, and
(b) to the Authority.
(13) A decision of the CMA under this paragraph must be published, in a way an authorised member of the CMA considers appropriate, as soon as reasonably practicable after it is made.
(14) Section 12I(2) applies to the publication of a decision under sub-paragraph (13) as it does to the publication under section 12I of a determination by the CMA on an appeal.
Suspension of decision
2 (1) The CMA may direct that, pending the determination of an appeal against a decision of the Authority—
(a) the decision is not to have effect, or
(b) the decision is not to have effect to such extent as may be specified in the direction.
(2) In the case of an appeal against a decision of the Authority which already has effect by virtue of section 12B, the CMA may direct that the modification that is the subject of the decision—
(a) ceases to have effect entirely or to such extent as may be specified in the direction, and
(b) does not have effect, or does not have effect to the specified extent, pending the determination of the appeal.
(3) The power to give a direction under this paragraph is exercisable only where—
(a) an application for its exercise has been made by the appellant at the same time the appellant made an application in accordance with paragraph 1(3) for permission to bring an appeal against a decision of the Authority,
(b) the Authority has been given an opportunity of making representations or observations, in accordance with paragraph 3(2),
(c) the appellant (or, where the appellant is within section 12D(2)(c) or (d), those represented by the appellant, or consumers, respectively) would incur significant costs if the decision were to have effect before the determination of the appeal, and
(d) the balance of convenience does not otherwise require effect to be given to the decision pending that determination.
(4) The CMA’s decision on an application for a direction under this paragraph must be made—
(a) where the Authority makes representations or observations in accordance with paragraph 3(2), before the end of 10 working days beginning with the first working day after the day on which those representations or observations are received;
(b) in any other case, before the end of 14 working days beginning with the first working day following the day on which the application under sub-paragraph (3)(a) is received.
(5) The appellant must send the Authority a copy of the application for a direction under this paragraph at the same time as it is sent to the CMA.
(6) A direction under this paragraph must be—
(a) given by an authorised member of the CMA, and
(b) published, in a way an authorised member of the CMA considers appropriate, as soon as reasonably practicable after it is given.
(7) Section 12I(2) applies to the publication of a direction under sub-paragraph (6) as it does to the publication under section 12I of a determination by the CMA on an appeal.
Time limit for representations and observations by the Authority
3 (1) Sub-paragraph (2) applies where the Authority wishes to make representations or observations to the CMA in relation to—
(a) an application for permission to bring an appeal under paragraph 1;
(b) an application for a direction under paragraph 2.
(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) Sub-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) any 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 appeal 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 the 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, and
(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 securing 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) any 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.
Production 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) The 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) No 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 exercise 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) may 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).
Oral 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) by 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) The 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 may 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 appellant 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) there 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) No 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 authorised 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) The 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) The 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,
and 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 proceedings 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 1, 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) in 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 information 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,
it 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 a 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 guilty 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) The 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 provision 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) The 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) Rules 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) An 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 parties 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 other 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) Sums 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 any 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;
“appeal rules” means rules of procedure under paragraph 11;
“authorised member of the CMA”—
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 to 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;
in relation to a power exercisable in connection with an 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—
any member of the CMA Board who is also a member of the CMA panel, or
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 in 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 statement or information to be true;
“working day” means any day other than—
Saturday or Sunday;
Christmas Day or Good Friday;
a day which is a bank holiday in England and Wales under 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.
SCHEDULE 14 Biodiversity gain as condition of planning permission
Section 98
PART 1 Biodiversity gain condition
1 In the Town and Country Planning Act 1990, after section 90 insert—
Biodiversity gain
Biodiversity gain in England
90A Schedule 7A (biodiversity gain in England) has effect.
2 In that Act, after Schedule 7 insert—
SCHEDULE 7A
Biodiversity gain in England
Section 90A
PART 1 Overview and interpretation
Overview
1 (1) This Schedule makes provision for grants of planning permission in England to be subject to a condition to secure that the biodiversity gain objective is met.
(2) Paragraphs 2 to 12 have effect for the purposes of this Schedule.
Biodiversity gain objective
2 (1) The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributable 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) the post-development biodiversity value of the onsite habitat,
(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 purchased 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.
Biodiversity value and the biodiversity metric
3 References to the biodiversity value of any habitat or habitat enhancement are to its value as calculated in accordance with the biodiversity metric.
4 (1) The biodiversity metric is a document for measuring, for the purposes of this Schedule, the biodiversity value or relative biodiversity value of habitat or habitat enhancement.
(2) The 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 Secretary 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.
(6) The Secretary of State must lay the biodiversity metric, and any revised biodiversity metric, before Parliament.
Pre-development biodiversity value
5 (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) The 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) But the person submitting the biodiversity gain plan for approval 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) This paragraph is subject to paragraphs 6 and 7.
6 If—
(a) a person carries on activities on land on or after 30 January 2020 otherwise than in accordance with—
(i) planning permission, or
(ii) any 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 5(1) is lower on the relevant date than it would otherwise have been,
the pre-development biodiversity value of the onsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.
7 Where planning permission is granted in respect of land which is registered in the biodiversity gain site register under section 100 of the Environment Act 2021, the pre-development biodiversity value of the land is the total of—
(a) the biodiversity value of the onsite habitat on the relevant date, and
(b) to the extent that it is not included within that value, the biodiversity value of the habitat enhancement which is, on that date, recorded in the register as habitat enhancement to be achieved on the land.
Post-development biodiversity value
8 (1) In relation to any development for which planning permission is granted, the post-development biodiversity value of the onsite habitat 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 development 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 biodiversity value of the onsite habitat, subtracting the amount of that decrease.
This is subject to paragraph 9.
9 (1) This paragraph applies in relation to any development for which planning permission is granted where—
(a) the person submitting the biodiversity gain plan for approval 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 value.
(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 met.
(3) The condition is that any habitat 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) a planning obligation, or
(c) a conservation covenant,
be maintained for at least 30 years after the development is completed.
(4) The Secretary of State may by regulations amend sub-paragraph (3) so as to substitute for the period for the time being specified there a different period of at least 30 years.
Registered offsite biodiversity gains
10 (1) “Registered offsite biodiversity gain” means any habitat enhancement, 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 gain site register (as to which, see section 100 of the Environment Act 2021).
(2) References 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 measured, under the biodiversity metric, in relation to development to which it is allocated.
Biodiversity credits
11 “Biodiversity credits” means credits under section 101 of the Environment Act 2021.
General
12 (1) In relation to development for which planning permission is granted—
“onsite habitat” means habitat on the land to which the planning permission relates;
“planning authority” means the local planning authority, except that—
in a case where the planning permission is granted by Mayoral 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;
in a case where the planning permission is granted by the 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;
in a case where the planning permission is granted on an appeal under section 78, “planning authority” means such of the person determining the appeal or the local planning authority as that person may direct.
(2) “Habitat enhancement” means enhancement of the biodiversity of habitat.
(3) References to the grant of planning permission include the deemed grant of planning permission.
PART 2 Condition of planning permission relating to biodiversity gain
General condition of planning permission
13 (1) Every planning permission granted for the development of land in England 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) a biodiversity gain plan has been submitted to the planning authority (see paragraph 14), and
(b) the planning authority has approved the plan (see paragraph 15).
Biodiversity gain plan
14 (1) For the purposes of paragraph 13(2)(a), a biodiversity gain plan is a plan which—
(a) relates to development for which planning permission is granted, 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 biodiversity 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) any 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 plan;
(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);
(d) persons who may or must submit a biodiversity gain plan.
Approval of biodiversity gain plan
15 (1) For the purposes of paragraph 13(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) The 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) that, 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 any 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 biodiversity value specified in the plan in relation to the development,
(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, and
(f) any other matters specified in the plan under paragraph 14(2)(f).
Regulations about determinations
16 The 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) factors which may or must be taken into account in making such a determination;
(c) appeals relating to such a determination.
Exceptions
17 Paragraph 13 does not apply in relation to—
(a) development 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 State may by regulations specify.
Modifications for irreplaceable habitat
18 (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 permission 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 development 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
19 (1) The 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) the 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 grant 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 2.
20 (1) The Secretary of State may by regulations make provision modifying or excluding the application of this Part of this Schedule 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 section 102 (orders requiring discontinuance of use etc).
(2) Regulations under this paragraph may in particular include provision—
(a) for paragraph 13 not to apply in relation to the grant of planning permission referred to in sub-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.
(3) The conditions referred to in sub-paragraph (2)(b) may include conditions requiring—
(a) habitat enhancement on the land to which the planning permission relates;
(b) the allocation of registered offsite biodiversity gain to any development for which the planning permission is granted;
(c) the purchase of biodiversity credits for any such development.
Further application of this Part
21 The Secretary of State may by regulations make provision to apply this 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.
PART 2 Consequential amendments
3 (1) The 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 13 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 2 of Schedule 7A.
;
(b) in subsection (2)(a), for “and (aza)” substitute “, (aza) and (e)”.
(4) In section 70 (determination of applications: general considerations), in subsection (1)(a), after “section 62D(5)” insert “, paragraph 13 of Schedule 7A”.
(5) In section 73 (determination of applications to develop land after non-compliance), after subsection (2A) insert—
(2B) Nothing in this section authorises the disapplication of the condition under paragraph 13 of Schedule 7A (biodiversity gain condition).
(2C) Subsection (2D) applies where—
(a) for the purposes of paragraph 13 of Schedule 7A a biodiversity gain 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-development 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 13 of Schedule 7A in relation to the planning permission granted under this section.
(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 13 of Schedule 7A (biodiversity gain condition).
(7) In section 76C (provisions applying to applications made under section 62A), in subsection (2), after “Schedule 1” insert “, or by regulations under paragraph 14(3) or 16 of Schedule 7A,”.
(8) In section 84 (simplified planning zone schemes: conditions and limitations on planning permission), at the end insert—
(5) A simplified planning zone scheme may not disapply the condition under paragraph 13 of Schedule 7A (biodiversity gain condition).
(9) In section 88 (enterprise zones), after subsection (3) insert—
(3A) Subsection (3) is subject to paragraph 13 of Schedule 7A (biodiversity gain condition).
(10) In 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 13 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 13 of Schedule 7A (the biodiversity gain condition), subject as follows.
(8) The Secretary of State may by regulations make provision—
(a) for the condition under paragraph 13 of Schedule 7A to apply in relation to the modification of planning permission under this section, subject to such modifications as may be specified in 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 2 of Schedule 7A (including conditions of a kind referred to in paragraph 20(3) of that Schedule).
(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 13 of Schedule 7A (biodiversity gain condition)”.
(13) In 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 under 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 2 of Schedule 7A from being met in relation to any development, or
(b) give 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 2(4) of Schedule 7A (biodiversity gain condition) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.
SCHEDULE 15 Biodiversity gain in nationally significant infrastructure projects
Section 99
PART 1 Principal amendments to the Planning Act 2008
1 The Planning Act 2008 is amended as follows.
2 In section 103 (Secretary of State is to decide applications), after subsection (1) insert—
(1A) Schedule 2A makes provision about biodiversity gain in relation to decisions of the Secretary of State under sections 104 and 105; and for related matters.
3 (1) Section 104 (decisions in cases where national policy statement has effect) is amended as follows.
(2) For subsection (3) substitute—
(3) The Secretary of State must decide the application in accordance with any relevant national policy statement.
(3A) In particular, if a relevant national policy statement contains a biodiversity gain statement under Schedule 2A in relation to development of the description to which the application relates, the Secretary of State may not grant the application unless satisfied that the biodiversity gain objective contained in the statement is met in relation to the development to which the application relates.
(3B) Subsections (3) and (3A) do not apply to the extent that one or more of subsections (4) to (8) applies.
(3) In each of subsections (4), (5) and (6), for “any relevant national policy statement” substitute “subsection (3) or (3A)”.
(4) In subsection (8), for “a national policy statement” substitute “subsection (3) or (3A)”.
4 (1) Section 105 (decisions in cases where no national policy statement has effect), after subsection (2) insert—
(3) Where there is a biodiversity gain statement under Schedule 2A in relation to development of the description to which the application relates, the Secretary of State may not grant the application unless satisfied that the biodiversity gain objective contained in the statement is met in relation to the development to which the application relates.
(4) Subsection (3) does not apply to the extent that the Secretary of State is satisfied that deciding the application in accordance with that subsection would have an effect referred to in section 104(4), (5), (6) or (7).
5 After Schedule 2 insert—
SCHEDULE 2A
Biodiversity gain
Section 103
Introductory
1 (1) This Schedule applies to development which—
(a) is of a description of development to which a development consent order application may relate, and
(b) is not excluded development,
to the extent that the development is carried out in England.
(2) In this Schedule—
“development consent order application” means an application made under section 37 which falls to be determined under section 104 or 105;
“excluded development” means development of a description specified in regulations made by the Secretary of State.
Biodiversity gain statement
2 (1) A biodiversity gain statement is a statement of government policy in relation to the biodiversity gain to be achieved in connection with any description of development to which this Schedule applies.
(2) In particular the statement must—
(a) set out a biodiversity gain objective for any description of development to which this Schedule applies, and
(b) set out that, where development consent order applications are made for any development of that description during a period specified in the statement, the development must meet that objective.
(3) The statement may specify how development of any description may or must meet the biodiversity gain objective.
(4) In this Schedule, references to the period for which a biodiversity gain statement has effect are to the period referred to in sub-paragraph (2)(b).
3 (1) A biodiversity gain objective is an objective that the biodiversity value attributable to development to which a biodiversity gain statement relates exceeds the pre-development biodiversity value of the onsite habitat by a percentage specified in the statement.
(2) The percentage specified under sub-paragraph (1) must be at least 10%.
(3) The Secretary of State may by regulations amend sub-paragraph (2) so as to change the percentage for the time being specified in it.
4 (1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective how the biodiversity value or relative biodiversity value of any habitat or habitat enhancement is to be calculated.
(2) That may include calculation by, or by reference to—
(a) a biodiversity metric set out in a document produced by the Secretary of State for the purposes of the statement,
(b) the biodiversity metric referred to in paragraph 4 of Schedule 7A to the Town and Country Planning Act 1990, or
(c) such other biodiversity metric as the Secretary of State considers appropriate.
(3) The Secretary of State must—
(a) lay any document within sub-paragraph (2)(a) before Parliament, and
(b) publish it in such manner as the Secretary of State considers appropriate.
5 (1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective—
(a) what the pre-development biodiversity value of onsite habitat consists of, and
(b) the date by reference to which it is calculated.
(2) A biodiversity gain statement may in particular under sub-paragraph (1)(b) specify a different date in relation to development on land where activities on the land before the making of a development consent order application have, or have had, the result that the biodiversity value of the onsite habitat is lower than it would otherwise have been.
(3) A biodiversity gain statement must include provision to secure that, where a development consent order application relates to land which is registered in the biodiversity gain site register, the pre-development biodiversity value of the onsite habitat includes the biodiversity value of the habitat enhancement which is, on the date specified under sub-paragraph (1)(b), recorded in the register as habitat enhancement to be achieved on the land.
6 (1) A biodiversity gain statement may specify for the purposes of a biodiversity gain objective what the biodiversity value attributable to any development consists of.
(2) In particular, a biodiversity gain statement may specify any of the following as included in the biodiversity value attributable to any development—
(a) the post-development biodiversity value of the onsite habitat,
(b) the biodiversity value of any offsite biodiversity gain allocated to the development (which may be registered offsite biodiversity gain), and
(c) the biodiversity value of any biodiversity credits purchased for the development.
(3) If pursuant to sub-paragraph (2)(a) a biodiversity gain statement specifies the post-development biodiversity value of the onsite habitat, the statement must specify what that value consists of.
(4) If pursuant to sub-paragraph (2)(b) a biodiversity gain statement specifies the biodiversity value of any offsite biodiversity gain allocated to the development, other than registered offsite biodiversity gain, the statement must specify—
(a) what offsite biodiversity gain consists of, and
(b) how the allocation of offsite biodiversity gain is to be recorded.
(5) Provision under sub-paragraph (3) or (4) must include provision to secure that, where works are carried out for the purposes of any development that increase the biodiversity value of onsite or offsite habitat by an amount that is significant in relation to its previous biodiversity value, the increase is to be taken into account only if—
(a) any habitat enhancement resulting from the works is maintained for a period specified in the statement, and
(b) the maintenance of that habitat enhancement is secured in a way specified in the statement (for example, through conservation covenants or requirements imposed by a development consent order).
7 (1) A biodiversity gain statement must set out whether, and if so how, the biodiversity gain objective applies in relation to development where the onsite habitat is irreplaceable habitat.
(2) A biodiversity gain statement may specify requirements, in relation to any such development, relating to the making of arrangements for the purpose of minimising the adverse effect of the development on the onsite habitat.
8 A biodiversity gain statement must specify the evidence that persons making a development consent order application in relation to which the statement has effect must produce in order to demonstrate how the biodiversity gain objective is met.
Development covered by an existing national policy statement
9 (1) This paragraph applies where, at the time this Schedule comes into force, an existing national policy statement sets out policy in respect of a description of development to which this Schedule applies.
(2) On the first review of the existing national policy statement under section 6 after the coming into force of this Schedule, the Secretary of State must amend the statement under section 6(5)(a) so as to include a biodiversity gain statement for development of that description.
(3) The Secretary of State may issue a separate biodiversity gain statement (a “separate biodiversity gain statement”) having effect for any period before that for which the statement included in the existing national policy statement under sub-paragraph (2) has effect.
(4) Before issuing a separate biodiversity gain statement the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(5) The Secretary of State must keep a separate biodiversity gain statement under review and may amend it at any time.
(6) The Secretary of State must—
(a) lay a separate biodiversity gain statement before Parliament, and
(b) publish it in such manner as the Secretary of State considers appropriate.
(7) A separate biodiversity gain statement is for the purposes of section 104(2) to (9) to be regarded as contained in the existing national policy statement.
(8) If it appears to the Secretary of State that the existing national policy statement is inconsistent with a separate biodiversity gain statement, the Secretary of State may amend the existing national policy statement in such manner as seems appropriate to the Secretary of State to remove the inconsistency.
(9) Where the existing national policy statement is amended pursuant to sub-paragraph (2) to include a biodiversity gain statement in relation to any description of development, a separate biodiversity gain statement relating to development of that description must be revoked as from the beginning of the period for which the new statement has effect.
(10) If the existing national policy statement’s designation as a national policy statement is withdrawn in relation to any description of development, any separate biodiversity gain statement relating to development of that description has effect as if it were a biodiversity gain statement issued under paragraph 10(2).
(11) References in sub-paragraphs (4) to (10) to separate biodiversity gain statements include amended versions of such statements.
(12) For the purposes of this Schedule, “existing national policy statement” means a national policy statement which is designated under section 5 before the coming into force of this Schedule.
(13) For the purposes of sub-paragraph (2), an existing national policy statement is only reviewed under section 6 after the coming into force of this Schedule if the review begins after that time.
Development not covered by a national policy statement
10 (1) This paragraph applies where, at the time this Schedule comes into force or any subsequent time, no national policy statement sets out policy in respect of a description of development to which this Schedule applies.
(2) The Secretary of State may issue a biodiversity gain statement in relation to that description of development.
(3) Before issuing a biodiversity gain statement under sub-paragraph (2) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(4) The Secretary of State must keep a statement issued under sub-paragraph (2) under review and may amend or revoke it at any time.
(5) The Secretary of State must—
(a) lay a statement issued under sub-paragraph (2) before Parliament, and
(b) publish it in such manner as the Secretary of State considers appropriate.
(6) References in sub-paragraphs (3) to (5) to statements issued under sub-paragraph (2) include amended versions of such statements.
(7) If after a statement is issued under sub-paragraph (2) a national policy statement relating to the description of development is designated under section 5, the Secretary of State must—
(a) include a biodiversity gain statement in relation to that description of development in the national policy statement, and
(b) revoke the statement issued under sub-paragraph (2).
Development at sea
11 (1) The Secretary of State may by regulations provide for this Schedule to apply, with or without modifications, to any development to which this paragraph applies.
(2) This paragraph applies to development which—
(a) is of a description to which a development consent order application may relate, and
(b) is not excluded development,
to the extent that the development is carried out in the English marine region.
(3) In sub-paragraph (2), the “English marine region” means—
(a) the English offshore region, and
(b) the English inshore region, excluding waters in England.
(4) Regulations under this paragraph may make provision modifying the application of this Schedule in relation to development which is carried out at an inter-tidal location.
(5) In sub-paragraph (4), “inter-tidal location” means a location that—
(a) is in England, and
(b) is also at any time in the English inshore region.
Interpretation
12 For the purposes of this Schedule—
“biodiversity credits” means credits under section 101 of the Environment Act 2021;
“biodiversity gain site register” means the register under section 100 of the Environment Act 2021;
a “biodiversity metric” is a means of measuring the biodiversity value or relative biodiversity value of habitat or habitat enhancement;
“development consent order application” has the meaning given by paragraph 1(2);
“English inshore region” and “English offshore region” have the meanings given by section 322 of the Marine and Coastal Access Act 2009;
“excluded development” has the meaning given by paragraph 1(2);
“existing national policy statement” has the meaning given by paragraph 9(12);
“irreplaceable habitat” has the meaning given in regulations under paragraph 18 of Schedule 7A to the Town and Country Planning Act 1990;
“onsite habitat”, in relation to any development, means habitat on the land to which the development consent order application relates, and “offsite habitat” means habitat on other land;
“registered offsite biodiversity gain” has the meaning given by paragraph 10 of Schedule 7A to the Town and Country Planning Act 1990.
PART 2 Supplementary amendments to the Planning Act 2008
6 The Planning Act 2008 is amended as follows.
7 In section 37 (applications for orders for development consent), after subsection (3) insert—
(3A) The documents and information prescribed under subsection (3)(d) may include documents and information demonstrating how any biodiversity gain objective in a biodiversity gain statement under Schedule 2A having effect in relation to the development is to be met.
8 In section 120 (what may be included in development consent order), in subsection (2), at the end insert—
(c) requirements designed to secure that—
(i) the biodiversity gain objective under Schedule 2A relevant to the development is met;
(ii) any proposals included in the application for the order for the purposes of meeting the biodiversity gain objective are implemented.
9 (1) Section 232 (orders and regulations) is amended as follows.
(2) In subsection (5), at the end insert—
(f) regulations under paragraph 3(3) or 11 of Schedule 2A.
(3) In subsection (7), after “or 105(2)(b)” insert “or paragraph 3(3) or 11 of Schedule 2A”.
SCHEDULE 16 Controlling the felling of trees in England
Section 114
Introductory
1 Part 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) at 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 subsection (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 In 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 charge.
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—
Further notice under section 24 for next estate or interest holders
24A (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) steps 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 further 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 10(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—
Restocking orders after conviction under section 24 in England
24B (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) the 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 steps 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) to 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) the 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 England.
(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) Section 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 In section 30(5) (power to require information regarding interests in land), after the second “land” insert “, and the owner of any land in England”.
SCHEDULE 17 Use of forest risk commodities in commercial activity
Section 116
PART 1 Requirements
Meaning of “forest risk commodity”
1 (1) In this Schedule “forest risk commodity” means a commodity specified in regulations made by the Secretary of State.
(2) The regulations may specify only a commodity that has been produced from a plant, animal or other living organism.
(3) The regulations may specify a commodity only if the Secretary of State considers that forest is being or may be converted to agricultural use for the purposes of producing the commodity.
(4) “Forest” means an area of land of more than 0.5 hectares with a tree canopy cover of at least 10% (excluding trees planted for the purpose of producing timber or other commodities).
(5) In sub-paragraph (4) the reference to land includes land that is wholly or partly submerged in water (whether temporarily or permanently).
(6) The regulations may not specify timber or timber products, within the meaning of Regulation (EU) No. 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market.
(7) Before making regulations under this paragraph the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(8) The requirement to consult in sub-paragraph (7) may be met by consultation carried out before this paragraph comes into force.
Prohibition on using illegally produced commodities
2 (1) A regulated person in relation to a forest risk commodity must not use that commodity in their UK commercial activities unless relevant local laws were complied with in relation to that commodity.
(2) A regulated person in relation to a forest risk commodity must not use a product derived from that commodity in their UK commercial activities unless relevant local laws were complied with in relation to that commodity.
(3) In this Schedule “local law”, in relation to a forest risk commodity, means any law having effect in the country or territory where the source organism was grown, raised or cultivated.
(4) In this Schedule “relevant local law”, in relation to a forest risk commodity, means local law—
(a) which relates to the ownership of the land on which the source organism was grown, raised or cultivated,
(b) which relates to the use of that land, or
(c) which otherwise relates to that land and is specified in regulations made by the Secretary of State.
(5) The regulations may specify a local law only if it relates to the prevention of forest being converted to agricultural use.
(6) The “source organism” means the plant, animal or other living organism from which the forest risk commodity was produced.
(7) Sub-paragraph (1) does not apply to the use of a forest risk commodity where—
(a) the commodity is waste (within the meaning of article 2(1) of the Renewable Transport Fuel Obligations Order 2007 (S.I. 2007/3072)), and
(b) the use of the commodity is for the purpose of making renewable transport fuel—
(i) that qualifies for the issue of an RTF certificate under article 17 of that Order, and
(ii) in respect of which an additional RTF certificate may be issued under article 17A(4) of that Order.
(8) Sub-paragraph (2) does not apply to the use of a product derived from a forest risk commodity where—
(a) the commodity is waste (within the meaning of article 2(1) of the Renewable Transport Fuel Obligations Order 2007 (S.I. 2007/3072)), and
(b) the product is renewable transport fuel—
(i) that qualifies for the issue of an RTF certificate under article 17 of that Order, and
(ii) in respect of which an additional RTF certificate may be or has been issued under article 17A(4) of that Order.
Due diligence system
3 (1) A regulated person in relation to a forest risk commodity who uses that commodity or a product derived from that commodity in their UK commercial activities must establish and implement a due diligence system in relation to that commodity.
(2) In this Schedule a “due diligence system”, in relation to a forest risk commodity, means a system for—
(a) identifying, and obtaining information about, that commodity,
(b) assessing the risk that relevant local laws were not complied with in relation to that commodity, and
(c) mitigating that risk.
(3) The Secretary of State may by regulations make further provision about the matters in sub-paragraph (2)(a) to (c), including in particular—
(a) the information that should be obtained;
(b) the criteria to be used in assessing risk;
(c) the ways in which risk may be mitigated.
Annual report on due diligence system
4 (1) A regulated person in relation to a forest risk commodity who uses that commodity or a product derived from that commodity in their UK commercial activities must, for each reporting period, provide the relevant authority with a report on the actions taken by the person to establish and implement a due diligence system in relation to that commodity as required by paragraph 3.
(2) The report must be provided no later than 6 months after the end of the reporting period to which it relates.
(3) The Secretary of State may by regulations make provision—
(a) about the content and form of reports under this paragraph;
(b) about the manner in which reports under this paragraph are to be provided.
(4) The relevant authority must make reports under this paragraph available to the public in the way, and to the extent, specified in regulations made by the Secretary of State.
(5) In this paragraph “relevant authority” means—
(a) the Secretary of State, or
(b) if regulations made by the Secretary of State specify another person as the relevant authority for the purposes of this paragraph, that other person.
(6) In this Schedule “reporting period” means—
(a) the period beginning with the day on which this paragraph comes fully into force and ending with the following 31 March, and
(b) each successive period of 12 months.
Exemption
5 (1) A regulated person in relation to a forest risk commodity is exempt from the Part 1 requirements in respect of their use of that commodity, or a product derived from that commodity, in their UK commercial activities during a reporting period if they satisfy the following two conditions.
(2) Condition 1 is that before the start of the period, the person gives a notice to the relevant enforcement authority containing—
(a) a declaration that the person is satisfied on reasonable grounds that the amount of the commodity used in their UK commercial activities during the period will not exceed the prescribed threshold, and
(b) the prescribed information.
(3) Condition 2 is that the amount of the commodity used in the person’s UK commercial activities during the period does not exceed the prescribed threshold.
(4) Sub-paragraphs (5) and (6) apply where—
(a) a regulated person gives a notice under sub-paragraph (2), but
(b) the amount of the commodity used in the person’s UK commercial activities during the period exceeds the prescribed threshold.
(5) If, before the relevant date, the regulated person gives a notice to the relevant enforcement authority containing the prescribed information, the person is exempt from the Part 1 requirements in respect of their use of the commodity, or the product derived from the commodity, in their UK commercial activities during the part of the reporting period—
(a) beginning with the start of the period, and
(b) ending with the date the notice is given.
(6) If the regulated person does not give a notice under sub-paragraph (5), the person is not exempt from the Part 1 requirements in respect of their use of the commodity, or the product derived from the commodity, in their UK commercial activities during any part of the reporting period.
(7) In this paragraph—
“prescribed” means prescribed in regulations made by the Secretary of State;
“relevant date” means the date during the reporting period that the amount of the commodity used in the person’s UK commercial activities exceeds the prescribed threshold;
“relevant enforcement authority” means the enforcement authority on which the function of receiving notices under this paragraph has been conferred by Part 2 regulations.
(8) Regulations under this paragraph may in particular—
(a) prescribe thresholds by reference to weight or volume;
(b) make provision about how the amount of a forest risk commodity used in a regulated person’s UK commercial activities (including in relation to a forest risk commodity from which a product is derived) is to be determined,
and regulations under paragraph (b) may include provision for determining the amount by reference to matters determined or published by the Secretary of State or other persons.
(9) Before making regulations under this paragraph (except under sub-paragraph (2)(b) or (5)) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(10) The requirement to consult in sub-paragraph (9) may be met by consultation carried out before this paragraph comes into force.
Guidance
6 (1) The Secretary of State may issue guidance to an enforcement authority about the Part 1 requirements.
(2) An enforcement authority must have regard to guidance issued under sub-paragraph (1) when exercising its functions under Part 2 of this Schedule.
Meaning of “regulated person”
7 (1) In this Schedule “regulated person”, in relation to a forest risk commodity, means a person (other than an individual) who carries on commercial activities in the United Kingdom, and—
(a) meets such conditions in relation to turnover as may be specified in regulations made by the Secretary of State for the purposes of defining who is a regulated person in relation to that forest risk commodity, or
(b) is an undertaking which is a subsidiary of another undertaking which meets those conditions.
(2) Regulations under sub-paragraph (1) may make provision about how turnover is to be determined.
(3) Before making regulations under sub-paragraph (1) the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(4) The requirement to consult in sub-paragraph (3) may be met by consultation carried out before this paragraph comes into force.
(5) The Secretary of State may by regulations make provision for the Part 1 requirements not to apply, or to apply with modifications, in relation to a person who becomes a regulated person for such transitional period, after they become a regulated person, as may be specified in the regulations.
(6) The Secretary of State may by regulations make provision for a group of undertakings to be treated as a regulated person, in such circumstances, for such purposes and to such extent as may be provided (and may modify the application of the Schedule accordingly).
(7) In this paragraph—
“group” has the meaning given by section 474 of the Companies Act 2006;
“undertaking” has the meaning given by section 1161 of that Act,
and whether an undertaking is a subsidiary of another undertaking is to be determined in accordance with section 1162 of that Act.
PART 2 Enforcement
General power
8 The Secretary of State may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by or under Part 1 of this Schedule (“Part 1 requirements”).
Powers to confer functions
9 (1) Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Schedule).
(2) Part 2 regulations may include provision—
(a) conferring functions involving the exercise of discretion;
(b) for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
(3) Part 2 regulations may include provision requiring an enforcement authority—
(a) to issue guidance about the exercise of its functions;
(b) to consult with specified persons before issuing such guidance.
Monitoring compliance
10 Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with Part 1 requirements.
Records and information
11 Part 2 regulations may include provision—
(a) requiring persons on whom Part 1 requirements are imposed to keep records;
(b) requiring persons on whom Part 1 requirements are imposed to provide records or other information to an enforcement authority;
(c) requiring an enforcement authority to make reports or provide information to the Secretary of State.
Powers of entry etc
12 (1) Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
(2) Part 2 regulations may include provision—
(a) for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
(b) about applications for, and the execution of, warrants.
(3) Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
(a) enter premises by force;
(b) enter a private dwelling without the consent of the occupier;
(c) search and seize material.
Sanctions
13 (1) Part 2 regulations may include provision—
(a) for, about or connected with the imposition of civil sanctions in respect of—
(i) failures to comply with Part 1 requirements or Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) for appeals against such sanctions.
(2) Part 2 regulations must include provision to ensure that in a case where—
(a) a regulated person fails to comply with a requirement in paragraph 2(1) or (2) in relation to their use of a forest risk commodity or a product derived from a forest risk commodity, but
(b) an enforcement authority is satisfied that the regulated person took all reasonable steps to implement a due diligence system in relation to the commodity used by the person in that particular case,
a civil sanction may not be imposed on the regulated person in respect of the failure to comply.
(3) Part 2 regulations may include provision—
(a) creating criminal offences punishable with a fine in respect of—
(i) failures to comply with civil sanctions imposed under Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) about such offences.
(4) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
14 Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence, or
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
Charges
15 Part 2 regulations may include provision—
(a) requiring persons on whom Part 1 requirements are imposed to pay to an enforcement authority charges, as a means of recovering costs incurred by that enforcement authority in performing its functions;
(b) authorising a court or tribunal dealing with any matter relating to Part 1 requirements or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Consultation requirement
16 (1) Before making Part 2 regulations the Secretary of State must consult any persons the Secretary of State considers appropriate.
(2) The requirement to consult in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
PART 3 General provisions
Review
17 (1) The Secretary of State must review the effectiveness of the Part 1 requirements and any Part 2 regulations (“relevant provisions”) in accordance with this paragraph.
(2) A review must consider in particular—
(a) the amount of forest being converted to agricultural use for the purposes of producing commodities;
(b) the impact of the relevant provisions on the amount of forest being converted to agricultural use for the purposes of producing forest risk commodities;
(c) the impact of the relevant provisions on the use of forest risk commodities, or products derived from forest risk commodities, in UK commercial activities where relevant local laws were not complied with in relation to those commodities;
(d) any changes to relevant local laws in relation to forest risk commodities.
(3) Having carried out a review the Secretary of State must lay before Parliament, and publish, a report stating—
(a) the conclusions of the review, and
(b) the steps, if any, the Secretary of State intends to take to improve the effectiveness of the relevant provisions (including whether the Secretary of State intends to make any regulations under this Schedule).
(4) The first review must be completed during the period—
(a) beginning with the second anniversary of the first date on which paragraphs 2 to 4 are fully in force, and
(b) ending with the third anniversary of the first date on which paragraphs 2 to 4 are fully in force.
(5) Subsequent reviews must be completed before the end of the 2 year period beginning with the day on which the previous review was completed.
(6) A review is completed when the Secretary of State has laid and published the report.
Interpretation
18 (1) In this Schedule—
“agricultural use” includes use for horticulture and aquaculture;
“commercial activity” includes—
producing, manufacturing and processing;
distributing, selling, or supplying;
purchasing for a purpose within paragraph (a) or (b) (but not purchasing as a consumer);
“due diligence system”, in relation to a forest risk commodity, has the meaning given by paragraph 3;
“enforcement authority” has the meaning given by paragraph 9;
“forest” has the meaning given by paragraph 1;
“forest risk commodity” has the meaning given by paragraph 1;
“local law”, in relation to a forest risk commodity, has the meaning given by paragraph 2;
“Part 1 requirements” has the meaning given by paragraph 8;
“Part 2 regulations” has the meaning given by paragraph 8;
“regulated person”, in relation to a forest risk commodity, has the meaning given by paragraph 7;
“relevant local law”, in relation to a forest risk commodity, has the meaning given by paragraph 2;
“reporting period” has the meaning given by paragraph 4;
“UK commercial activity” means commercial activity carried on in the United Kingdom.
(2) References in this Schedule to a product derived from a forest risk commodity are to a product derived from a forest risk commodity in whole or in part (and include any product of an animal fed on a forest risk commodity or a product derived from a forest risk commodity).
SCHEDULE 18 Discharge or modification of obligations under conservation covenants
Section 130
PART 1 Discharge by Upper Tribunal
Power 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) The 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) The 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) The 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 the 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) change 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) when 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) whether 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—
(a) whether any conservation purpose which the obligation in question had when the original agreement was entered into could be served equally well by an obligation relating to different land in respect of which the applicant holds a qualifying estate; and
(b) whether, if an order under paragraph 1(1) were made, such an alternative obligation could be created by means of a conservation covenant.
(4) In considering, for the purposes of this paragraph, affordability or practicability in relation to performance of an obligation, change in the personal circumstances of a person bound by the obligation is to be disregarded.
(5) In this paragraph references to the original agreement, in relation to an obligation under a conservation covenant, are to the agreement containing the provision which gave rise to the obligation.
Supplementary powers
4 (1) The Upper Tribunal may include in an order under paragraph 1(1) or 2(1) provision requiring the applicant to pay compensation in respect of loss of benefit resulting from the order.
(2) Compensation under sub-paragraph (1) shall be payable to such person at such time and be of such amount as the order may provide.
5 (1) The Upper Tribunal may, if it considers it reasonable to do so in connection with the discharge under paragraph 1(1) of an obligation under a conservation covenant, include in the order discharging the obligation provision making the discharge conditional on the entry by the applicant and the responsible body under the covenant into a conservation covenant agreement containing such provision as the order may specify.
(2) The power under sub-paragraph (1) is exercisable only with the consent of the applicant and the responsible body.
PART 2 Modification by Upper Tribunal
Power to modify on application by landowner or responsible body
6 (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 modify the obligation in respect of any of the land to which it relates.
(2) The Upper Tribunal must add as party to the proceedings on an application under sub-paragraph (1) the responsible body under the covenant.
7 (1) The Upper Tribunal may, on the application of the responsible body under a conservation covenant, by order modify an obligation under the covenant in respect of any of the land to which it relates.
(2) The 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.
8 The power under paragraph 6(1) or 7(1) does not include power to make a change to an obligation which, had it been included in the original agreement, would have prevented the provision of the agreement which gave rise to the obligation being provision in relation to which the conditions in section 117(1)(a) were met.
Deciding whether to modify
9 (1) The Upper Tribunal may exercise its power under paragraph 6(1) or 7(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 6(1) or 7(1), the matters to which the Upper Tribunal is to have regard include—
(a) whether there has been any material change of circumstance since the 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) change 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) when 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) whether the obligation serves the public good.
(3) In considering, for the purposes of this paragraph, affordability or practicability in relation to performance of an obligation, change in the personal circumstances of a person bound by the obligation is to be disregarded.
Supplementary powers
10 (1) The Upper Tribunal may include in an order under paragraph 6(1) or 7(1) provision requiring the applicant to pay compensation in respect of loss of benefit resulting from the order.
(2) Compensation under sub-paragraph (1) shall be payable to such person at such time and be of such amount as the order may provide.
11 (1) The Upper Tribunal may, if it considers it reasonable to do so in connection with the modification under paragraph 6(1) of an obligation under a conservation covenant, include in the order modifying the obligation provision making the modification conditional on the entry by the applicant and the responsible body under the covenant into a conservation covenant agreement containing such provision as the order may specify.
(2) The power under sub-paragraph (1) is exercisable only with the consent of the applicant and the responsible body.
Effect of modification
12 (1) The modification of an obligation by an order under this Part binds—
(a) the parties to the proceedings in which the order is made, and
(b) any person who, as respects any of the land to which the modification relates, becomes a successor of a person bound by the modification.
(2) For the purposes of sub-paragraph (1) “successor of a person bound by the modification” means a person who holds, in respect of any of the land to which the modification relates—
(a) the estate held by the person so bound when the order modifying the obligation was made, or
(b) an estate in land derived (whether immediately or otherwise) from that estate after the order modifying the obligation was made.
Interpretation
13 In this Part, references to the original agreement, in relation to an obligation under a conservation covenant, are to the agreement containing the provision which gave rise to the obligation.
Section 137
PART 1 General
Application of Part 7
1 Part 7 applies in relation to Crown land as it applies in relation to any other land, subject to the provisions of this Schedule.
Interpretation
2 (1) In this Schedule—
(a) “Crown land” means land in relation which there is an estate in land of a kind listed in column 1 of the following Table, and
(b) “the appropriate authority”, in relation to any Crown land, means the authority specified in column 2 for the estate in land in question.
Estate in land | Appropriate authority
Estate belonging to Her Majesty in right of the Crown (other than estate vesting as bona vacantia) | The Crown Estate Commissioners or other government department having management of the land
Estate vesting in Her Majesty in right of the Crown as bona vacantia | The Treasury Solicitor
Estate belonging to Her Majesty in right of Her private estates | A person appointed by Her Majesty under the Royal Sign Manual, or, if no such appointment is made, the Secretary of State
Estate belonging to Her Majesty in right of the Duchy of Lancaster | The Chancellor of the Duchy of Lancaster
Estate belonging to the Duchy of Cornwall | Such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints
Estate belonging to a government department or held in trust for Her Majesty for the purposes of a government department | That department
(2) References in this Schedule to Part 7 are to Part 7 of this Act (apart from this Schedule and Schedule 20).
(3) If any question arises as to what authority is the appropriate authority in relation to any Crown land, that question is to be referred to the Treasury, whose decision is final.
(4) In this paragraph the reference to Her Majesty’s private estates is to be read in accordance with section 1 of the Crown Private Estates Act 1862.
Demesne land
3 (1) Where land belongs to Her Majesty in right of the Crown but is not held for an estate in fee simple absolute in possession—
(a) Her Majesty in right of the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple absolute in possession in the land, and
(b) any estate granted or created out of the land is to be regarded for those purposes as derived from that estate in fee simple.
(2) The land referred to in sub-paragraph (1) does not include land which becomes subject to escheat on the determination of an estate in fee simple absolute in possession in the land if—
(a) it is land to which an obligation under a conservation covenant related when the estate determined, or
(b) it is not land to which such an obligation related at that time and Her Majesty in right of the Crown has not taken possession or control of the land, or entered into occupation of it.
Land subject to escheat
4 (1) This paragraph applies where land becomes subject to escheat on the determination of an estate in fee simple absolute in possession in land to which an obligation under a conservation covenant relates.
(2) The conservation covenant is not terminated on the determination of that estate, even though the appropriate authority has no liability in respect of the obligation unless and until the Crown—
(a) takes possession or control of the land, or enters into occupation of it, or
(b) becomes the holder of—
(i) an estate granted by the Crown out of the land, or
(ii) an estate in land derived (whether immediately or otherwise) from an estate falling within sub-paragraph (i).
(3) If the Crown takes possession or control of the land, or enters into occupation of it—
(a) the Crown is to be regarded for the purposes of Part 7 and this Schedule as holding an estate in fee simple in possession in the land, and
(b) that estate is to be regarded for those purposes as immediately derived from the determined estate.
(4) If the Crown grants an estate out of the land after having previously taken possession or control of the land, or entered into occupation of it, the estate is to be regarded for the purposes of Part 7 and this Schedule as immediately derived from the estate mentioned in sub-paragraph (3)(a).
(5) But if the Crown grants an estate out of the land without having previously taken possession or control of the land, or entered into occupation of it—
(a) the acts of the Crown in granting that estate are not to be regarded for the purposes of Part 7 and this Schedule as taking possession or control of the land, or entering into occupation of it, and
(b) the new estate is to be regarded for those purposes as immediately derived from the determined estate.
(6) In this paragraph and paragraph 5 “the Crown” means Her Majesty in right of the Crown or of the Duchy of Lancaster, or the Duchy of Cornwall, as the case may be.
Bona vacantia
5 (1) This paragraph applies where an estate in land to which an obligation of the landowner under a conservation covenant relates vests in the Crown as bona vacantia.
(2) The appropriate authority has no liability in respect of the obligation in relation to any period before the Crown takes possession or control of the land or enters into occupation of it.
PART 2 Conservation covenants relating to Crown land held by a person other than the appropriate authority
Agreements for the purposes of section 117
6 (1) If Crown land which is a qualifying estate is held by a person other than the appropriate authority, the appropriate authority may, as respects that qualifying estate, enter into a conservation covenant agreement, in place of the holder of the estate.
(2) An authority that enters into such an agreement by virtue of sub-paragraph (1) is to be treated for the purposes of section 117 as the holder of the qualifying estate (instead of the person in whose place the authority is acting).
Modification of Part 7 in relation to obligations under certain Crown conservation covenants
7 (1) Paragraphs 8 to 12 modify Part 7 in its application to obligations under a conservation covenant created by an agreement entered into by virtue of paragraph 6(1).
(2) In those paragraphs, in relation to an obligation under the conservation covenant—
“the appropriate authority” means the appropriate authority with respect to the estate in land of the original landowner which is the qualifying estate in relation to the obligation, and
“the original landowner” means the person who held the qualifying estate when the agreement was entered into.
8 References in Part 7 to an obligation of the landowner under a conservation covenant are to be read as references to an obligation of the appropriate authority under the conservation covenant.
9 (1) Section 122 has effect with the following modifications in its application to an obligation mentioned in paragraph 8.
(2) In subsection (2)—
(a) in paragraph (a), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority, and
(b) in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the original landowner.
(3) In subsection (3) the reference to the landowner under the covenant is to be read as a reference to the original landowner.
(4) In subsection (4)—
(a) in the opening words and in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority,
(b) in the opening words, the reference to a successor of that landowner is to be read as a reference to a successor of the original landowner, and
(c) in paragraph (b), the reference to land in relation to which the landowner ceases to be the holder of the qualifying estate is to be read as a reference to land in relation to which the original landowner ceases to be the holder of the qualifying estate.
(5) Subsection (5)(c) has effect, if the successor’s immediate predecessor was the original landowner, as if the reference to the successor’s immediate predecessor were a reference to the appropriate authority.
10 (1) Section 123 has effect with the following modifications in its application to an obligation of the responsible body under the conservation covenant.
(2) In subsection (1)—
(a) in paragraph (a), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority, and
(b) in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the original landowner.
(3) In subsection (2) the reference to the landowner under the covenant is to be read as a reference to the original landowner.
(4) In subsection (3)—
(a) in the opening words and in paragraph (b), the reference to the landowner under the covenant is to be read as a reference to the appropriate authority,
(b) in the opening words, the reference to a successor of that landowner is to be read as a reference to a successor of the original landowner, and
(c) in paragraph (b), the reference to land in relation to which the landowner ceases to be the holder of the qualifying estate is to be read as a reference to land in relation to which the original landowner ceases to be the holder of the qualifying estate.
11 In section 129(4)(b) and (5) the references to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the original landowner.
12 In Schedule 18—
(a) the references in paragraphs 1(1) and 6(1) to a person bound by, or entitled to the benefit of, an obligation under a conservation covenant by virtue of holding an estate in land are to be read as references to the appropriate authority;
(b) the references in paragraphs 2(2) and 7(2) to any person who by virtue of holding an estate in land is bound by or entitled to the benefit of an obligation are to be read as references to the appropriate authority;
(c) the references in paragraph 12(1)(b) and (2) to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the original landowner.
PART 3 Other modifications of Part 7
Cases where estate in land to which conservation covenant relates has been acquired by the Crown and is held by person other than the appropriate authority
13 (1) Paragraphs 14 to 17 apply where the estate in land by virtue of which a person is a successor of the landowner under a conservation covenant is held by or on behalf of the Crown by a person other than the appropriate authority.
(2) In sub-paragraph (1) “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which any obligation under the covenant relates—
(a) the qualifying estate, or
(b) an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
14 In section 122—
(a) subsections (2)(b), (3) and (4) have effect as if the estate in land were held by the appropriate authority, and
(b) subsection (5)(c) has effect, in relation to a disposal of the estate in land, as if the successor’s immediate predecessor were the appropriate authority.
15 In section 123—
(a) subsections (1)(b), (2) and (4) have effect as if the estate in land were held by the appropriate authority, and
(b) subsection (4) has effect as if the reference to the successor were a reference to the appropriate authority.
16 (1) In section 129(4)(b) and (5) references to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the person in whose place the appropriate authority acts.
(2) In section 129(4)(b) and (5) references to a successor of a person bound by the modification (where the person bound is not the appropriate authority) are to be read as if the estate in any of the land to which the modification relates which is held by the person in whose place the appropriate authority acts were held by the appropriate authority.
17 In Schedule 18—
(a) the reference in paragraph 6(1) to a person bound by an obligation under a conservation covenant by virtue of holding an estate in land is to be read as a reference to the appropriate authority;
(b) the reference in paragraph 7(2) to any person who is bound by or entitled to the benefit of an obligation by virtue of holding an estate in land is to be read as a reference to the appropriate authority;
(c) the references in paragraph 12(1)(b) and (2) to a successor of a person bound by the modification (where the person bound is the appropriate authority) are to be read as references to a successor of the person in whose place the appropriate authority is acting.
Agreements under section 127(1) and (3)
18 (1) This paragraph applies where, in respect of any of the land to which an obligation of the landowner under a conservation covenant relates, the qualifying estate is held by or on behalf of the Crown by a person other than the appropriate authority.
(2) The appropriate authority may enter into an agreement under section 127(1) or (3) in place of the holder of that estate.
(3) An agreement entered into by virtue of sub-paragraph (2) is to be treated for the purposes of section 127(4)(c) as entered into by virtue of the estate in land held by the person in whose place the appropriate authority enters into the agreement.
Agreements under section 128(1)
19 (1) This paragraph applies if the responsible body under a conservation covenant enters into an agreement under section 128(1) in relation to an obligation which it owes to the other party to the agreement by virtue of paragraph 10(2)(a) or 15(a).
(2) If the other party is entitled to the benefit of the obligation by virtue of paragraph 10(2)(a), the reference in section 128(2)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land held by the person in whose place the other party acted in entering into the agreement which gave rise to the obligation.
(3) If the other party is entitled to the benefit of the obligation by virtue of paragraph 15(a), the reference in section 128(2)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land which the other party is treated by paragraph 15(a) as holding.
Agreements under section 129(1)
20 (1) Sub-paragraph (2) applies where a person who—
(a) is bound by an obligation of the landowner under the covenant by virtue of paragraph 9(2)(a), or
(b) is entitled to the benefit of the obligation of the responsible body under a conservation covenant by virtue of paragraph 10(2)(a),
exercises the power under section 129(1) to modify the obligation.
(2) The reference in section 129(3)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land held by the person in whose place the person exercising that power acted in entering into the agreement which gave rise to the obligation.
21 (1) Sub-paragraph (2) applies where a person who—
(a) is bound by an obligation of the landowner under a conservation covenant by virtue of paragraph 14(a), or
(b) is entitled to the benefit of an obligation of the responsible body under a conservation covenant by virtue of paragraph 15(a),
exercises the power in section 129(1) to modify the obligation.
(2) The reference in section 129(3)(c) to the estate in land by virtue of which the power is exercisable is to be read as a reference to the estate in land which the person is treated by paragraph 14(a) or 15(a) as holding.
SCHEDULE 20 Consequential amendments relating to Part 7
Section 139
Acquisition of Land Act 1981 (c. 67)
1 The Acquisition of Land Act 1981 is amended as follows.
2 (1) Section 12 (notice of compulsory purchase by local and other authorities) is amended as follows.
(2) In the title, for “and occupiers” insert “, occupiers and others”.
(3) In subsection (2)—
(a) omit the “or” at the end of paragraph (a), and
(b) at the end of paragraph (b) insert
, or
(c) the person is entitled to the benefit of an obligation under a conservation covenant (within the meaning of Part 7 of the Environment Act 2021) relating to the land.
3 (1) Paragraph 3 of Schedule 1 (notice of compulsory purchase by Ministers) is amended as follows.
(2) In the title, for “and occupiers” insert “, occupiers and others”.
(3) In sub-paragraph (2)—
(a) omit the “or” at the end of paragraph (a), and
(b) at the end of paragraph (b) insert
, or
(c) the person is entitled to the benefit of an obligation under a conservation covenant (within the meaning of Part 7 of the Environment Act 2021) relating to the land.
Housing and Planning Act 2016 (c. 22)
4 The Housing and Planning Act 2016 is amended as follows.
5 (1) Section 203 (power to override easements and other rights) is amended as follows.
(2) In subsections (1)(b) and (4)(b)—
(a) the words after “breaching” become sub-paragraph (i), and
(b) after that sub-paragraph insert
, or
(ii) an obligation under a conservation covenant.
(3) In subsection (10)—
(a) omit the “or” at the end of paragraph (a), and
(b) at the end of paragraph (b)(ii) insert
, or
(c) a breach of an obligation under a conservation covenant owed to the National Trust.
6 (1) Section 204 (compensation for overridden easements etc) is amended as follows.
(2) In subsection (1), after “section 203” insert “(1)(a) or (b)(i) or (4)(a) or (b)(i)”.
(3) After subsection (1) insert—
(1A) But a person is not liable to pay compensation under this section for breaching an obligation under a conservation covenant.
7 In section 205(1) (interpretation), at the appropriate place insert—
“obligation under a conservation covenant” has the same meaning as in Part 7 of the Environment Act 2021;
.
Neighbourhood Planning Act 2017 (c. 20)
8 The Neighbourhood Planning Act 2017 is amended as follows.
9 In section 20 (notice requirements relating to taking temporary possession), at the end insert—
(10) For the purposes of subsection (1), a person entitled to the benefit of an obligation under a conservation covenant is to be treated as having an interest in the land to which the obligation relates.
10 In section 23 (compensation), after subsection (5) insert—
(5A) For the purposes of subsections (2) and (3), the person is not entitled to compensation under this section by virtue of being the person entitled to the benefit of an obligation under a conservation covenant.
11 (1) Section 27 (powers of acquiring authority in temporary possession of land) is amended as follows.
(2) In subsection (3)—
(a) omit the “or” at the end of paragraph (a), and
(b) at the end of paragraph (b), insert
, or
(c) causing a person to be in breach of an obligation under a conservation covenant relating to the land.
(3) After subsection (4) insert—
(4A) The acquiring authority is not bound by an obligation under a conservation covenant relating to the land by virtue of acquiring a right to use the land under this section.
(4) In subsection (6)—
(a) omit the “or” at the end of paragraph (a), and
(b) at the end of paragraph (b), insert
, or
(c) a use of land that causes a person (or, if the person were to permit or suffer the use, would cause the person) to be in breach of an obligation under a conservation covenant relating to the land owed to the National Trust.
12 In section 30 (interpretation), at the appropriate place, insert—
“obligation under a conservation covenant” has the same meaning as in Part 7 of the Environment Act 2021;
.
Section 140
Amendment of the REACH Regulation
1 (1) The Secretary of State may by regulations amend the REACH Regulation.
(2) The Secretary of State may make regulations under this paragraph only if the Secretary of State considers that the provision made by the regulations is consistent with Article 1 of the REACH Regulation (aim and scope of the REACH Regulation).
(3) The Secretary of State may not make regulations under this paragraph which amend any protected provision of the REACH Regulation.
(4) But sub-paragraph (3) does not prevent any protected provision of the REACH Regulation from being amended by provision made under this paragraph by virtue of section 143(1)(a).
(5) Before making regulations under this paragraph, the Secretary of State must publish an explanation of why the Secretary of State considers that the provision to be made by the regulations is consistent with Article 1 of the REACH Regulation.
(6) The explanation relating to regulations under this paragraph is to be published—
(a) no later than the time when the Secretary of State begins the consultation on that exercise of the power that is required by paragraph 5, and
(b) in the manner which the Secretary of State considers appropriate.
(7) Regulations under this paragraph are subject to the affirmative procedure.
Amendment of the REACH Enforcement Regulations 2008
2 (1) The Secretary of State or a relevant devolved authority may by regulations amend the REACH Enforcement Regulations 2008 (S.I. 2008/2852).
(2) The Secretary of State or a relevant devolved authority may make regulations under this paragraph only if the Secretary of State or the authority considers that the provision made by the regulations is necessary or appropriate for, or in connection with, enforcement of the REACH Regulation.
(3) The provision that may be made by regulations under this paragraph includes—
(a) provision creating, or widening the scope of, a criminal offence;
(b) provision specifying the punishment for a criminal offence.
(4) But regulations under this paragraph may not provide for a criminal offence—
(a) under the law of England and Wales to be—
(i) punishable on conviction on indictment with imprisonment for more than two years, or
(ii) punishable on summary conviction with imprisonment for more than the prescribed term for England and Wales or with a fine that is calculated on a daily basis of more than £100 a day;
(b) under the law of Scotland to be—
(i) punishable on conviction on indictment with imprisonment for more than two years, or
(ii) punishable on summary conviction with imprisonment for more than the prescribed term for Scotland or with a fine of more than the applicable maximum for Scotland (if not calculated on a daily basis) or a fine of more than £100 a day;
(c) under the law of Northern Ireland to be—
(i) punishable on conviction on indictment with imprisonment for more than two years, or
(ii) punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or a fine of more than £100 a day.
(5) In sub-paragraph (4)—
“applicable maximum for Scotland” means—
level 5 on the standard scale, where the offence is a summary offence;
the statutory maximum, where the offence is triable either way;
“prescribed term for England and Wales” means—
51 weeks, where the offence is a summary offence;
12 months, where the offence is triable either way;
“prescribed term for Scotland” means—
3 months, where the offence is a summary offence;
12 months, where the offence is triable either way.
(6) But, in the definition of “prescribed term for England and Wales” in sub-paragraph (5)—
(a) the reference to 51 weeks is to be read, until the commencement of section 281(5) of the Criminal Justice Act 2003, as a reference to 3 months;
(b) the reference to 12 months is to be read, until 2 May 2022, as a reference to 3 months.
(7) Regulations under this paragraph—
(a) made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
(b) made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
(c) made by the Department of Agriculture, Environment and Rural Affairs or the Department for the Economy in Northern Ireland may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
(8) Regulations under this paragraph are subject to the affirmative procedure.
Consent of the devolved administrations
3 (1) The power of the Secretary of State to make regulations under this Schedule is subject to the consent requirement in Article 4A of the REACH Regulation.
(2) Accordingly, in Article 4A(1) of the REACH Regulation, the reference to the REACH Regulation is to be read as including a reference to this Schedule.
Requests by devolved administrations for exercise of powers under this Schedule
4 The Secretary of State must consider any request made by a relevant devolved authority for the Secretary of State to make regulations under this Schedule.
Consultation
5 (1) Before making regulations under this Schedule the Secretary of State must consult—
(a) the Agency,
(b) any person nominated by a relevant devolved authority as a consultee for the consultation in question, and
(c) such other persons the Secretary of State considers appropriate.
(2) The nomination of a person as a consultee by a relevant devolved authority is to be made by that authority to the Secretary of State.
(3) Before making regulations under paragraph 2 a relevant devolved authority must consult—
(a) the Agency, and
(b) such other persons that authority considers appropriate.
The protected provisions
6 In paragraph 1 “protected provision of the REACH Regulation” means any of the provisions of the REACH Regulation set out in the following Table—
Fundamental principles
Article 1 (aim and scope of the REACH Regulation)
Article 5 (the principle of “no data, no market”)
Article 25(1) (animal testing as a last resort)
Article 35 (access to information for workers)
Article 45 (evaluation of substances on the rolling action plan)
Article 48 (follow-up to substance evaluation)
Article 55 (the aim of Title VII, which is about authorisation of substances)
Article 67(1) (effect of restrictions contained in Annex XVII)
Article 92 or 93 (appeals)
Article 111, first subparagraph (formats and software for submission of information to the Agency)
Article 123 (communication to the public of information on risks of substances)
Role of the devolved administrations
Article 4A (the consent requirement)
Article 129(1) (the safeguard clause: basic principles)
Transparency
Article 54 (publication of information on evaluation)
Article 64(6) (publication of Agency authorisation opinions)
Article 72(2) (publication of Agency restriction opinions)
Article 77(A4) (Agency to act in a way that ensures a high degree of transparency) and (2)(e) (database(s) of registered substances)
Article 109 (general rules on transparency for the Agency)
Collaboration between the Agency and other bodies
Article 95 (conflicts of opinion with other bodies)
Article 108 (contacts with stakeholder organisations)
Article 110 (relations with relevant public bodies)
Annexes
The Annexes
Other interpretation
7 In this Schedule—
“Agency” has the same meaning as in the REACH Regulation (see Article 2A of the Regulation);
“REACH Regulation” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency;
“relevant devolved authority” means—
the Scottish Ministers,
the Welsh Ministers, or
the Department of Agriculture, Environment and Rural Affairs or the Department for the Economy in Northern Ireland.