There is a duty not only to conserve but also to enhance biodiversity. Section 135 of the Environment Act 2023,  on biodiversity net gain, pre-development biodiversity value and habitat enhancement, comes into force from 12 February 2024 : S.I. 2024 No. 92 ( C. 6 ).With some exemptions, all major housing developments are now required to deliver at least a 10% benefit for nature. Biodiversity Gain Requirements, linked to Biodiversity Plans, and with a concept of “ irreplaceable habitat “ , will be a condition of planning permissions. This follows six sets of Regulations made in January 2024 on biodiversity : S.I.s 2024 /45-50inv.

A further batch of Biodiversity Regulations : Sis 2024/45 & 46, on Biodiversity Gain Site Registration, and SI 2024/50, on planning modifications and amendments.

In relation to biodiversity gain in England, the Environment Act 2021 ( the 2021 Act ) inserted Section 90A of and Schedule 7A to TCPA 1990. Subject to exceptions, every planning permission is deemed to be granted subject to general condition. The biodiversity gain requirement is that the biodiversity value attributable to the development exceeds the pre-development diversity value by at least the  statutorily specified percentage. Biodiversity value means value calculated in accordance with a metric.

Three sets of Regulations have been made under the 2021 Act as part of a package in relation to biodiversity gain. Exemption Regulations, S.I. 2024/47, prescribe categories of planning permission to which the requirement that would otherwise be imposed as a general condition do not apply. There are small development, de minimis and householder exemptions. There is also exemption for development “ forming part of, or ancillary to “ the high speed railway network, development undertaken “ solely or mainly “ for the “ purpose “ of fulfilling the condition which applies to another development, and self-build and custom build.

Irreplaceable Habitat Regulations, S.I. 2024/48, also in force from 12 February 2024, define “ irreplaceable habitat “ for the purpose of securing that a biodiversity gain objective is met, and disapply the requirement to increase the biodiversity value of developments sites. Alternative arrangements must be made to minimise the adverse effect of the development on the biodiversity of the habitat where that habitat is deemed “ irreplaceable “. The Consequential Amendments Regulations, S.I.2024/49, relate to biodiversity gain plans.

The Agent of Change Principle is expressed at paragraph 187 of the NPPF: planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities.  This is because existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. In R (TOTTENHAM HOTSPUR LTD) v HARINGEY LBC (2023) EWHC 2569 (Admin) Saini J at paragraphs 48-50 inclusive rejected a challenge that the LPA had failed lawfully to apply the principle, in relation to a major primarily residential redevelopment adjacent to the Tottenham Hotspur Stadium,  The planning framework created a framework which would ensure that access to the Stadium, a key planning consideration, would be satisfactorily achieved without unreasonable impact on the Club.  The Principle does not demand no impact. A judgment by the LPA is required.

The Habitats Directive (notwithstanding Brexit) and domestic Regulations mandate that an appropriate assessment be undertaken before planning consent is given for a development. That is irrespective of what stage in the planning process has been reached according to domestic law. In C G Fry and Son Ltd v SoS for Levelling Up, etc (2023) EWHL 1622 (Admin) Sir Ross Cranston holds that application of Article 6(3) of the Directive and a broad and purposive approach to the interpretation of Regulations 63 and 70 of the Regulations requires the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required for the whole development would be undermined if those provisions were limited to the initial, permission, stage of a multi-stage process.

Section 78 of the Building Act 1984 gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. Does this power abrogate the ned to obtain planning permission, where this would otherwise be required in order to take the necessary steps? Yes, says Lane J in R ( Samuel Smith Old Brewery ) v Redcar & Cleveland BC ( 2023 ) EWHC 878 ( Admin).The exercise of the power is not contingent upon any need to have obtained planning permission. The fact that planning permission was required, but not obtained, by the Council before commencing demolition of the property, an unlisted building in a conservation area, did not mean that that the Council acted outside the Section 78 power.

The legal principles relating to the Reports of Planning Officers are well settled. Nonetheless challenges based on such Reports continue to proliferate and Judges find it necessary to restate those principles. In R ( Armstrong ) v Ashford Borough Council ( 2023 ) EWHC 317 ( Admin ) at para 22 Bourne J summarised the principles as follows : (1) the weight to be given  to material considerations is for decision-makers to decide; (2) Reports to Planning Committees should be concise and focussed; (3) the assessment of how much and what information to include is for the expert judgment nf Planning Officers; (4) Judicial Review will not make headway on the basis of a defective Report unless the overall effect of the Report significantly misleads the committee about material matters which thereafter are left uncorrected at the Meeting of the Planning Committee; (5) Courts should make a fair reading of each Report as a whole; (6) Reports should be read bearing in mind that they are addressed to a knowledgeable readership, and in challenges to the decisions of democratically elected and experienced  members of Planning Committees Courts should proceed with prudence and caution.

In R (Ashchurch Rural Parish Council) v Tewksbury  Borough Council (2023). EWCA Civ 101 a challenge to an EIA assessment succeeded: paras 70-104 inc; as did other grounds. At paras 32 & 33 the Court of Appeal restated the respective roles of the planning officer and the decision-maker.

In R  (Whitley Parish Council) v North Yorkshire County Council (2023) EWCA Civ 92 the Court of Appeal restates some basic propositions bearing on the determination of an application for planning permission under the statutory scheme.

1. Albeit priority must be given to the Development Plan, that priority may be outweighed  by national planning policy, which may make some provisions of the Plan outdated.
2. The function of the Planning Officer is not to decide the fate of the proposal, but to provide advice.
3. The Court’s supervisory jurisdiction is to establish whether the authority’s decision-making has been vitiated by any error of law.

The Court also restated basic principles that govern the taking of a decision by a Pling Committee.

Section 73 of TCPA 1990 applies to Applications to develop land without compliance with conditions subject to which a previous planning permission was granted. ARMSTRONG v SoS for LEVELLING-UP etc and CORNWALL COUNCIL (2022) EWHC 142 (KB) concerned a refusal by the Council of the Claimant’s application to vary the plans for construction of a new dwelling under an extant planning permission. The main issue that arose was whether the Planning Inspector lawfully concluded that the Application would give rise to a fundamental variation to that permission  such that the Application fell outside the scope of Section 73, in circumstances where the variation of the condition would not give rise to any conflict with the description in that permission of the development. The Court held that the Planning Inspector did not act lawfully, for any or all of 8 reasons, set out at paras 74-94 inclusive. The correct starting point is that there is nothing in Section 73 that restricts its application to non-fundamental variations. Provided that an application is limited to non-compliance with a condition, rather than any other part of the permission, it is within the scope of Section 73.