How to Appeal a Biodiversity Gain Plan (s78) Decision

Securing planning permission often involves meeting the biodiversity net gain (BNG) condition, an essential part of the planning process in England. Subject to certain exemptions, developers must receive approval for a biodiversity gain plan from the Local Planning Authority (LPA) before commencing any development. However, if the LPA refuses or fails to determine the plan, developers have the right to appeal under section 78 of the Town and Country Planning Act. This blog will walk you through the steps of appealing such a decision.

When You Can Appeal

You can appeal if:

• The LPA refuses your biodiversity gain plan.
• The LPA fails to determine the plan within the expected timeframe, which is usually 8 weeks from the day after your submission, unless a time extension was agreed upon.

Who Can Appeal

Only the person who submitted the biodiversity gain plan to the LPA can appeal the decision. This restriction ensures that the appeal process is closely tied to the original application and applicant.

Time Limits for Filing an Appeal

To file your appeal correctly, you need to meet these deadlines:

1. Refusal of Biodiversity Gain Plan:
   6 months from the date on the refusal notice.
2. Failure to Determine the Plan:
   6 months from the date the LPA should have made a decision (typically 8 weeks after your submission unless extended in writing).

How to Make Your Appeal

The appeal must be submitted through the Appeals Casework Portal. Before you begin, it is essential that you refer to the guidance on completing your appeal form when making your appeal, which provides essential details on:

• Required documents (e.g., submission copies, notifications to landowners or tenants).
• Specific actions to follow when filing the appeal.If you need assistance, you can reach out to the Planning Inspectorate’s customer support team using the Customer Services form for general inquiries.

What Happens After You Appeal

Once the Planning Inspectorate receives your appeal, they will:

1. Check its validity to ensure all required steps were followed.
2. Provide next steps and a timeline for your appeal process.

You will receive updates about how long the process might take and any further actions you need to take. You can complain about how the Planning Inspectorate handled your appeal. There’s no time limit for complaints.

If You Disagree with the Appeal Decision

If you believe the Planning Inspectorate made a legal mistake in handling your appeal, you can challenge the decision through the High Court. This legal challenge must be filed under Section 288 of the Town and Country Planning Act 1990.

Key Points for Legal Challenges

• Deadline: You have 6 weeks from the day after the appeal decision to file the challenge.
• Legal Advice: It is recommended to consult a lawyer to guide you through the process.

More details can be found in the Administrative Court Judicial Review Guide 2023.

Complaints About the Appeal Process

If you are unhappy with how the Planning Inspectorate handled your appeal, you can submit a complaint at any time—there is no time limit for raising concerns about procedural issues.

Final Thoughts

Navigating the appeals process under section 78 can feel complex, but understanding the requirements, timelines, and procedures will help you manage the process smoothly. Developers should prepare their biodiversity gain plans carefully to minimise delays and avoid potential appeals, but when an appeal becomes necessary, following the steps outlined above ensures that your case is properly reviewed.

Check back regularly for the latest insights and news. Learn how AiDash Biodiversity Net Gain Management System™ (BNGAI™) can help with 10% BNG planning for urban projects. Start your first BNG project now!