Appeal a Biodiversity gain plan (s78) decision
How to appeal to the Secretary of State if the Local Planning Authority refuse or fail to determine the biodiversity gain plan.
Applies to England
Overview
Subject to a number of exemptions, the biodiversity gain condition applies to all planning permissions granted in England.
The biodiversity gain condition stipulates that development may not commence until a biodiversity gain plan has been approved by the Local Planning Authority.
If the Local Planning Authority refuse or fail to determine the biodiversity gain plan, the developer may, under section 78 of the Town and Country Planning Act, appeal to the Secretary of State.
The Planning Inspectorate, on behalf of the Secretary of State, will determine these appeals.
For further information on the biodiversity net gain, please see the planning practice guidance.
Who can appeal
Only the person who submitted the biodiversity gain plan to the Local Planning Authority may appeal.
How long you have to appeal
For an appeal against the Local Planning Authority’s decision to refuse the Biodiversity Gain Plan, we must receive the appeal within 6 months of the date on the Local Planning Authority’s refusal notice.
For an appeal against the Local Planning Authority’s failure to determine the Biodiversity Gain Plan, we must receive the appeal within 6 months of the date the Local Planning Authority should have determined the plan (i.e., unless a time extension was agreed in writing, 8 weeks beginning from the day after the date you submitted the plan).
Making an appeal
You must make your appeal on the Appeals Casework Portal.
It is essential that you refer to the guidance on completing your appeal form when making your appeal. This guidance explains what supporting documents are required with your appeal and what actions you need to take when appealing (for example, notifying other owners and tenants of the land).
Contact the Planning Inspectorate’s customer support team if you need help completing your appeal. Use the Customer Form: Customer Services and general enquiries.
After you appeal
The Planning Inspectorate will check your appeal to make sure it’s valid. They’ll tell you what happens next and how long your appeal may take.
You can complain about how the Planning Inspectorate handled your appeal. There’s no time limit for complaints.
If you think the appeal decision is legally incorrect
You can challenge the decision in the High Court under section 288 of the Town and Country Planning Act 1990 if you think the Planning Inspectorate made a legal mistake.
You have 6 weeks from the day after the date of the decision to do this.
Find a lawyer to advise you if you’re unsure about this.
Further information about applications under section 288 of the Town and Country Planning Act 1990 can be found in the Administrative Court Judicial Review Guide 2023.