Statutory guidance

Statutory biodiversity credits: terms and conditions of sale

Published 12 February 2024

Applies to England

1. Introduction

1.1 The statutory biodiversity credit sales scheme

The statutory biodiversity credit sales scheme is run by Natural England (NE) (referred to below as “us”, “we, “our”) on behalf of the Department for Environment, Food and Rural Affairs (“Defra”) pursuant to section 101(3) of the Environment Act 2021.

1.2 About these Terms and Conditions

(a) This document (the “Terms and Conditions”) sets out the overarching principles and the agreement between us relating to the purchase by you of Biodiversity Credits.
(b) All applications to purchase Biodiversity Credits will be given a Reference Number at the time of submission and are subject to anti-money laundering (AML) checks.
(c) Once your AML clearance has been confirmed we will send you a pro forma invoice by email (‘Pro Forma Invoice’) that will state the Reference Number of the application to which the Pro-forma invoice relates, the tier, number and Price of the Biodiversity Credits requested in that application. This constitutes an offer by us to sell Biodiversity Credits to you in accordance with these Terms and Conditions (‘Our Offer’).
(d) Our Offer shall be accepted by you when you make the payment by bank transfer of the Price, to the bank account stated on the Pro Forma Invoice. On receipt of such payment the agreement (‘Agreement’) between us to buy and sell the Biodiversity Credits set out in the Offer shall come into existence in accordance with these Terms and Conditions.
(e) Our Offer can be accepted by you in accordance with (c) above for 90 days from the date it is emailed to you, after which time it will be withdrawn and if you wish to purchase Biodiversity Credits you will need make a new application.

1.3 Biodiversity credit scheme information

You should read these Ts and Cs before purchasing your Biodiversity Credits and in conjunction with the Defra published information and guidance relating to the Biodiversity Credit scheme on (the “Scheme Information”). The Scheme Information includes:

(a) the Biodiversity Credit Price List; and
(b) other scheme information and guidance which is there to help you.

1.4 References in the Terms and Conditions

(a) Definitions of capitalised terms are defined in this document either when they are first referred to, or in the glossary at condition 2.
(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under that statute or statutory provision.
(c) A reference to a public organisation includes a reference to any successor to that public organisation.
(d) Any words following the terms ‘including’, ‘include’, ‘in particular’ or ‘for example’ or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
(e) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

2. Glossary

2.1 Capitalised terms used in these Terms and Conditions have specific meanings which are described below:

(a) Agreement: means an agreement between us to buy and sell Biodiversity Credits set out in each Pro Forma Invoice in accordance with these Terms and Conditions and comprises each Pro Forma Invoice and these Terms and Conditions as set out in condition 1.2 above.
(b) Reference Number; the reference number given to each application by us via the digital sales service for Biodiversity Credits.
(c) Biodiversity Credit: means the tier and number of statutory biodiversity credits being purchased by you.
(d) Biodiversity Credit Price List: means the price list setting out the prices payable for the different tiers of Biodiversity Credit, as published by Defra at Statutory biodiversity credit prices - GOV.UK (www.gov.uk).
(e) Biodiversity Net Gain (BNG) Obligation: means the requirement pursuant to Section 90A and Schedule 7A of the Town and Country Planning Act 1990 (as amended by the Environment Act 2021) to achieve the biodiversity gain objective in respect of a specific development.
(f) Data Protection Legislation: means: the UK GDPR; the Data Protection Act 2018 to the extent that it relates to processing of personal data and privacy; and all other applicable Law relating to the processing of personal data and privacy
(g) Defra: means the Department for Environment, Food and Rural Affairs.
(h) EIR: means the Environmental Information Regulations 2004.
(i) FOIA: means the Freedom of Information Act 2000.
(j) Law: any law, statute, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, byelaw, right within the meaning of Section 4(1) EU Withdrawal Act 2018 as amended by EU (Withdrawal Agreement) Act 2020, regulation, order, regulatory policy, mandatory guidance or code of practice, judgement of a relevant court of law, or directives or requirements of any regulatory body with which you are required to comply.
(k) Offer: has the meaning given to it in condition 1.2(c).
(l) Price: the price for Biodiversity Credits stated in the pro-forma invoice
(m) Pro Forma Invoice has the meaning given to it in condition 1.2(c).
(n) Scheme Information: has the meaning given to it in condition 1.3.
(o) Statutory Metric: means the Secretary of State version of the statutory biodiversity metric calculation tool file containing the ‘unit shortfall summary’ tab, which can be found in the results menu of our [NE/DEFRA – link] website.
(p) Section 73 Application: means an application under Section 73 of the Town and Country Planning Act 1990.
(q) UK GDPR: the retained EU law version of the General Data Protection Regulation (Regulation (EU) 2016/679), as transferred into UK Law by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit (Regulations (SI 419/2019) and any applicable national implementing Laws as amended from time to time.
(r) Working Day: any day other than a Saturday, a Sunday or a public holiday in England.

3. About your Agreement to purchase BNG Credits

3.1 What you are declaring

By entering the Agreement you confirm that:

(a) the declarations you made in your application for the Biodiversity Credit remain true and accurate to the best of your knowledge and belief and you the person named as the applicant are the purchaser of the Biodiversity Credits;
(b) you have reviewed the Scheme Information and associated guidance;
(c) you have full capacity and authority to enter into the Agreement;
(d) the planning permission has been granted for the planning reference in your application;
(e) you are not aware of any circumstances which would render you ineligible for the purchase of Biodiversity Credit or otherwise prevent you from fulfilling your obligations under the Agreement; and
(f) your obligations under the Agreement do not and will not conflict in whole or in part with any other legal or contractual obligations you are subject to.

3.2 What you are agreeing to do

In entering into an Agreement, you are agreeing to:

(a) purchase the Biodiversity Credit for the price as described in condition 1.1;
(b) comply with these Terms and Conditions.
(c) comply with and review Scheme Information and associated guidance as published from time to time.

3.3 You acknowledge and agree that an Agreement does not:

(a) operate as an endorsement or proof that your BNG Obligation has been discharged
or
(b) amount to the grant of any other regulatory consent required by the Law.

4. No liability

4.1 It is your responsibility to ensure that you have purchased the correct number and tier of biodiversity credit to satisfy your BNG Obligation. Neither we nor Defra have any direct or indirect (including consequential loss) liability to you if you have purchased the incorrect number, tier or type of biodiversity credits.

5. Your Biodiversity Credit is not transferrable

5.1 No disposal

Biodiversity Credits are issued in respect of the specific planning permission in respect of which the application given the Reference Number quoted on the Proforma Invoice was made. You may not sell, transfer or otherwise dispose of your Biodiversity Credit to any third party (whether a person, company or other organisation) except in the limited circumstance(s) described in the Scheme Information available at [ introduce hyperlink to guidance].

6. Payment

6.1 On receipt of confirmation of clear AML checks we will issue a Pro Forma VAT invoice via email to the email address provided in your application, for the Price required to be paid by you to purchase the Biodiversity Credits.

6.2 You must pay the Price for Biodiversity Credits by bank transfer to the account identified on the Pro-forma Invoice, within 90 days of the date of the Pro Forma invoice.

7. Issuing of Credits

When we have received payment of the Price we will issue a Proof of Purchase of your Biodiversity Credits which will state the date of purchase, amount, tier and type of Biodiversity Credits purchased in respect of the planning permission.

8. Refunds

8.1 No refund

You will not be entitled to receive a refund of monies paid for your Biodiversity Credit unless the circumstance set out in condition 8.2 below applies.

8.2 Permitted circumstance

You will be entitled to a refund if the planning permission permitting the development (“The Development”) for which you have purchased the Biodiversity Credit is revoked pursuant to Section 97 of the Town and Country Planning Act 1990 without your consent, but only to the extent that compensation for the cost of the Biodiversity Credit is not available to you and you can adequately evidence the same.

8.3 Interest

If a refund is payable, no interest shall be payable on any refunded amount.

9. Intellectual property rights

9.1 We do not anticipate that any new intellectual property rights will be created in relation to this Agreement, but if any intellectual property rights are created (for example in assessments, plans and data generated in relation to this Agreement) then this will be owned by the party who created it.

9.2 If we or Defra need to use any intellectual property created and/or provided by you for the purposes of the Agreement and/or our related reporting obligations, you hereby grant us and Defra a perpetual, irrevocable, non-exclusive, sub-licensable, royalty free licence to do so for use in connection with the Agreement.

10. Data protection and data sharing

10.1 We and you shall always comply with our respective obligations under the Data Protection Legislation.

10.2 Notwithstanding condition 10.1 above, we may be required to provide personal information to Defra about you in relation to this Agreement and Defra may also be required by law to publish certain information about you, as further described in condition 1.

10.3 For information on how we handle data see our [insert link to privacy policy].

10.4 You agree that the data you submit through the sales service (including the Statutory Metrics) may be used by us and Defra and shared with relevant third parties for the following purposes:

10.4.1 to inform monitoring and evaluation of the credit scheme and the wider BNG policy;
10.4.2 to inform policy decisions on credit sales and the digital sales service;
10.4.3 to inform investment policy and decisions arising from credit sales; or
10.4.4 to report on credit sales and any evaluation reports on BNG including statutory reporting

11. Freedom of information

11.1 You acknowledge that we are subject to the requirements of the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIR”).

11.2 We may need to share information we hold about you or your Agreement so we or Defra can comply with any FOIA and EIR request. The extent, content and format of the information we disclose is our decision. In making any disclosure, we will have due regard to Data Protection Legislation.

11.3 You will provide all necessary assistance and cooperation which we or Defra reasonably request for the purposes of complying with our obligations under FOIA and EIR within a time period specified by us.  You must tell us as soon as reasonably practicable if you receive a FOIA/EIR request intended for us or Defra.

12. Other Terms

12.1 Both us (NE) and Defra may transfer an Agreement to another public organisation. We may transfer our rights and obligations under an Agreement to another Government body. We will tell you in writing if this happens and we will ensure that the transfer will not affect your rights under an Agreement.

12.2 Third party rights under this Agreement. An Agreement is between you and us. No other person shall have any rights to enforce any of its terms, however, the terms of an Agreement and our rights under it may be enforced by Defra.

12.3 If a court finds part of an Agreement illegal, the rest will continue in force. Each of the conditions of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining conditions will remain in full force and effect.

12.4 Even if we delay in enforcing an Agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under an Agreement, or if we delay in taking steps against you in respect of you breaching an Agreement, that will not mean that you do not have to meet your obligations under such Agreement and it will not prevent us taking actions against you, as described in these Terms and Conditions, at a later date.

12.5 Which laws apply to an Agreement and where you may bring legal proceedings. Each Agreement is governed by English law and you can only bring legal proceedings in respect of each Agreement in the English courts.