Appeal 6000837

The appeal is invalid, and no further action will be taken on it.

An application for costs was made by [name] against Walsall Metropolitan Borough Council. As the appeal is invalid, there is no appeal against which an application can be made. As such, no further action will be taken on this

My concerns about the validity of the appeal were set out in a letter sent to the appellant and Council on 24 February 2026 and comments were received from both parties the same day. A further letter, with a follow up question, was sent to the appellant on 2 March 2026 and a response was received on the same day. This correspondence has bene taken fully into account.

On 12 February 2024, the provisions of the Environment Act 2021 relating to biodiversity net gain (BNG) came into force for major developments, and on 2 April 2024 this was extended to include smaller sites.

Under Article 7(1A) of the Town and Country Planning (Development Management Procedure) Order 2015 (’the DMPO’), all applications for planning permission submitted after those dates are required to be accompanied by certain information relating to BNG, except where one of the exemptions specified in the legislation applies. The information required includes a declaration as to whether the applicant believes the BNG provisions to apply to the application, and if not, the reasons why. Where none of the exemptions apply, the application must also be accompanied by a completed biodiversity metric calculation, showing the biodiversity value of the on-site habitat, and various other related details which are listed in full in sub-paragraph (c) of the above Article.

In the case of the present appeal scheme, the biodiversity matrix and other biodiversity information required by DMPO Article 7(1A) have not been submitted. The application and appeal can therefore only be valid if one of the exemptions is applicable. The appellant has claimed that this scheme is exempt from BNG as the planning application was submitted prior to the 2 April 2024 and that there would be no loss of biodiversity features.

Although the declaration on the planning application form is dated 1 October 2023 both parties have subsequently agreed that the planning application was made on the 24 February 2025. This date is after the 2 April 2024 and therefore the exemption for applications made before this date does not apply.

The appeal site is over 25m2 and contains a rear garden area that is split into two defined areas. The rear portion is predominantly hardstanding with some parked vehicles and a timber building akin to a shed. I understand this area was previously used as a storage yard. The front portion is set out as a domestic garden with a range of planting and a block-built building that the appellant has confirmed is a gym. Within the appeal site, along the rear boundary, were a small number of trees, including some that appeared to have recently been cut down. Adjacent to the gym were additional trees, including some larger examples.

The submitted plans are limited and so it was not clear as to the location of the proposed dwelling or how it would relate to the gym building and adjacent planting. However, the appellant confirmed that the dwelling would replace both the gym and timber buildings. The proposed dwelling is L-shaped; extending along one side of the appeal site from the rear boundary before projecting across the garden to the other side boundary. From the submissions before me, it is this latter element that would replace the gym.

Given the positioning of the proposed dwelling, it would extend over the planted area around and adjacent to the existing gym. The proposal would therefore necessitate this area’s clearance of any planting and trees and so the proposal would result in the loss of biodiversity features. I have not been provided with any evidence to demonstrate that the area affected would not exceed 25m2 and based on the available plans and my site observations, it seems to me that the area would exceed the 25m2 threshold. Consequently, the de minimis exception would not apply.

On the evidence before me, the planning application was made after 2 April 2024 and would affect an area of land containing biodiversity features that is greater than 25m2. The scheme therefore does not appear to qualify for the exemption from the BNG regime. In these circumstances, the absence of the required BNG information means that the application as submitted to the Council was invalid.

An invalid application may not lawfully be determined, and so it follows that any appeal relating to such an application is also invalid. For these reasons, I find the present appeal to be invalid. No further action on it will therefore be taken.