Environment Act 2021 Commencement No 8 Regulations bring into force biodiversity gain provisions for TCPA 1990

The Environment Act 2021 (Commencement No 8 and Transitional Provisions) Regulations 2024 (SI 2024/44) were made on 17 January 2024.

The Regulations commence provisions of the Environment Act 2021 introducing a mandatory biodiversity gain requirement for planning applications made under the Town and Country Planning Act 1990 (TCPA 1990) in England, on 12 February 2024 (initially delayed from November 2023, then further delayed from January 2024).

The provisions being commenced are:

• Section 98 and paragraphs 1 and 2 of Schedule 14. These insert Schedule 7A into the TCPA 1990, which provides that a statutory condition for biodiversity gain will apply to all planning permissions granted in England, subject to a power to grant exceptions. The provisions in Schedule 7A to TCPA 1990 are commenced so far as they relate to planning permissions granted on application made under Part 3 of TCPA 1990, other than planning permissions relating to development to which section 73A of the TCPA 1990 applies (planning permission for development already carried out).
• Section 100 (biodiversity gain site register) and Section 101 (system for selling statutory biodiversity credits to the habitat compensation market).
• Paragraph 3 of Schedule 14 (consequential amendments to TCPA 1990).

The Regulations also make transitional provisions. Regulation 3 provides that the biodiversity gain planning condition does not apply to planning permissions where the application for planning permission was made before 12 February 2024.

Regulation 4 provides that, where the application for planning permission was made, or planning permission was granted, for a development before 12 February 2024, the biodiversity gain planning condition does not apply to any subsequent planning permission for that development granted on an application made under section 73 of the TCPA 1990.

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