Growth and Infrastructure Bill (HL Bill 92)

A

BILL

[AS AMENDED ON REPORT]

TO

Make provision in connection with facilitating or controlling the following,
namely, the provision or use of infrastructure, the carrying-out of
development, and the compulsory acquisition of land; to make provision
about when rating lists are to be compiled; to make provision about the rights
of employees of companies who agree to be employee shareholders; and for
connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Promoting growth and facilitating provision of infrastructure, and related matters

1 Option to make planning application directly to Secretary of State

(1) In the Town and Country Planning Act 1990, after section 62 insert—

62A When application may be made directly to Secretary of State

(1) 5A relevant application that would otherwise have to be made to the
local planning authority may (if the applicant so chooses) be made
instead to the Secretary of State if the following conditions are met at
the time it is made—

(a) the local planning authority concerned is designated by the
10Secretary of State for the purposes of this section; and

(b) the development to which the application relates (where the
application is within subsection (2)(b)(i)), or the development
for which outline planning permission has been granted (where
the application is within subsection (2)(b)(ii)), is major
15development.

(2) In this section—

Growth and Infrastructure BillPage 2

(a) “major development” means development of a description
prescribed by the Secretary of State;

(b) “relevant application” means—

(i) an application for planning permission for the
5development of land in England, other than an
application of the kind described in section 73(1); or

(ii) an application for approval of a matter that, as defined
by section 92, is a reserved matter in the case of an
outline planning permission for the development of
10land in England.

(3) Where a relevant application is made to the Secretary of State under
this section, an application under the planning Acts—

(a) that is—

(i) an application for listed building consent, or for
15conservation area consent, under the Planning (Listed
Buildings and Conservation Areas) Act 1990, or

(ii) an application of a description prescribed by the
Secretary of State,

(b) that is considered by the person making the application to be
20connected with the relevant application,

(c) that would otherwise have to be made to the local planning
authority or hazardous substances authority,

(d) that is neither a relevant application nor an application of the
kind described in section 73(1), and

(e) 25that relates to land in England,

may (if the person so chooses) be made instead to the Secretary of State.

(4) If an application (“the connected application”) is made to the Secretary
of State under subsection (3) but the Secretary of State considers that it
is not connected with the relevant application concerned, the Secretary
30of State may—

(a) refer the connected application to the local planning authority,
or hazardous substances authority, to whom it would otherwise
have been made, and

(b) direct that the connected application—

(i) 35is to be treated as having been made to that authority
(and not to the Secretary of State under this section), and

(ii) is to be determined by that authority accordingly.

(5) The decision of the Secretary of State on an application made to the
Secretary of State under this section shall be final.

(6) 40The Secretary of State may give directions requiring a local planning
authority or hazardous substances authority to do things in relation to
an application made to the Secretary of State under this section that
would otherwise have been made to the authority; and directions
under this subsection—

(a) 45may relate to a particular application or to applications more
generally; and

(b) may be given to a particular authority or to authorities more
generally.

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62B Designation for the purposes of section 62A

(1) An authority may be designated for the purposes of section 62A only
if—

(a) the criteria that are to be applied in deciding whether to
5designate the authority are set out in a document to which
subsection (2) applies,

(b) by reference to those criteria, the Secretary of State considers
that there are respects in which the authority are not adequately
performing their function of determining applications under
10this Part, and

(c) the criteria that are to be applied in deciding whether to revoke
a designation are set out in a document to which subsection (2)
applies.

(2) This subsection applies to a document if—

(a) 15the document has been laid before Parliament by the Secretary
of State,

(b) the 40-day period for the document has ended without either
House of Parliament having during that period resolved not to
approve the document, and

(c) 20the document has been published (whether before, during or
after the 40-day period for it) by the Secretary of State in such
manner as the Secretary of State thinks fit.

(3) In this section “the 40-day period” for a document is the period of 40
days beginning with the day on which the document is laid before
25Parliament (or, if it is not laid before each House of Parliament on the
same day, the later of the two days on which it is laid).

(4) In calculating the 40-day period for a document, no account is to be
taken of any period during which—

(a) Parliament is dissolved or prorogued, or

(b) 30both Houses of Parliament are adjourned for more than four
days.

(5) None of the following may be designated for the purposes of section
62A

(a) the Homes and Communities Agency;

(b) 35the Mayor of London;

(c) a Mayoral development corporation;

(d) an urban development corporation.

(6) The Secretary of State must publish (in such manner as the Secretary of
State thinks fit)—

(a) 40any designation of an authority for the purposes of section 62A;
and

(b) any revocation of such a designation.

62C Notifying parish councils of applications under section 62A(1)

(1) If an application is made to the Secretary of State under section 62A(1)
45and a parish council would be entitled under paragraph 8 of Schedule
1 to be notified of the application were it made to the local planning
authority, the Secretary of State must notify the council of—

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(a) the application, and

(b) any alteration to the application accepted by the Secretary of
State.

(2) Paragraph 8(4) and (5) of Schedule 1 apply in relation to duties of the
5Secretary of State under subsection (1) as they apply to duties of a local
planning authority under paragraph 8(1) of that Schedule.

(3) An authority designated for the purposes of section 62A must comply
with requests from the Secretary of State for details of requests received
by the authority under paragraph 8(1) of Schedule 1.

(2) 10Schedule 1 (amendments related to applications made under the new section
62A, including provision for such applications to be determined by a person
appointed for the purpose unless the Secretary of State otherwise directs) has
effect.

2 Planning proceedings: costs etc

(1) 15In section 320 of the Town and Country Planning Act 1990 (local inquiries), at
the end insert—

(3) In its application by subsection (2) to an inquiry held in England,
section 250(4) of that Act has effect as if—

(a) after “the costs incurred by him in relation to the inquiry” there
20were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
“or, where he directs a portion of them to be paid, the amount
of that portion”.

(2) 25In section 322 of that Act (orders as to costs of parties where no local inquiry
held), after subsection (1A) insert—

(1B) Section 250(4) of the Local Government Act 1972 applies to costs
incurred by the Secretary of State, or a person appointed by the
Secretary of State, in relation to proceedings in England to which this
30section applies which do not give rise to a local inquiry as it applies to
costs incurred in relation to a local inquiry.

(1C) In its application for that purpose, section 250(4) of that Act has effect
as if—

(a) after “the costs incurred by him in relation to the inquiry” there
35were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
“or, where he directs a portion of them to be paid, the amount
of that portion”.

(1D) 40Section 42 of the Housing and Planning Act 1986 (recovery of
Minister’s costs) applies to costs incurred in relation to proceedings in
England to which this section applies which do not give rise to a local
inquiry as it applies to costs incurred in relation to an inquiry.

(3) In section 322A of that Act (costs orders: supplementary), after subsection (2)

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insert—

(3) Where this section applies in the case of an inquiry or hearing which
was to take place in England but did not, section 250(4) of that Act
applies to costs incurred by the Secretary of State or a person appointed
5by the Secretary of State as if—

(a) in the case of an inquiry, the inquiry had taken place;

(b) in the case of a hearing, the hearing were an inquiry which had
taken place.

(4) In its application for that purpose, section 250(4) of that Act has effect
10as if—

(a) after “the costs incurred by him in relation to the inquiry” there
were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
15“or, where he directs a portion of them to be paid, the amount
of that portion”.

(5) Section 42 of the Housing and Planning Act 1986 (recovery of
Minister’s costs) applies to costs incurred in relation to a hearing of the
kind referred to in subsection (1) or (1A) which was to take place in
20England but did not as it applies to costs incurred in relation to an
inquiry which was to take place but did not.

(4) In section 322B of that Act (local inquiries in London: costs), in the subsection
set out in subsection (5)—

(a) after “the costs incurred by the Secretary of State in relation to the
25inquiry” insert “, or such portion of those costs as he may direct,”, and

(b) after “the amount of the costs so incurred” insert “or, where he directs
a portion of them to be paid, the amount of that portion”.

(5) In section 323 of that Act (power to make provision about procedure in cases
where no inquiry or hearing etc), after subsection (3) insert—

(4) 30Regulations made by the Secretary of State under this section may
include provision as to the circumstances in which, in proceedings in
England such as are mentioned in subsection (1) or (1A)—

(a) directions may be given under section 250(4) of the Local
Government Act 1972 as applied by a prescribed provision of
35this Act;

(b) orders for costs may be made under section 250(5) of that Act as
so applied.

(6) In section 9 of the Tribunals and Inquiries Act 1992 (power to make provision
about procedure in inquiries and hearings), after subsection (3) insert—

(3ZA) 40Rules made by the Lord Chancellor under this section may include
provision as to the circumstances in which, in statutory inquiries held
in England—

(a) directions may be given under section 250(4) of the Local
Government Act 1972 as applied by a provision of the Town
45and Country Planning Act 1990 specified in the rules;

(b) orders for costs may be made under section 250(5) of the Local
Government Act 1972 as so applied.

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(7) In Schedule 6 to the Town and Country Planning Act 1990 (determination of
certain appeals by person appointed by the Secretary of State), in paragraph 2,
after sub-paragraph (10) insert—

(11) The Secretary of State may, if he thinks fit, direct that anything in
5connection with an appeal in England to which this Schedule applies
which would otherwise fall to be done by an appointed person shall
instead be done by the Secretary of State.

3 Compulsory purchase inquiries: costs

In section 5 of the Acquisition of Land Act 1981 (public local inquiries), after
10subsection (3) insert—

(4) In relation to each of the matters mentioned in paragraphs (a) and (b)
of subsection (3), section 250(5) of the Local Government Act 1972 also
applies—

(a) where arrangements are made for a public local inquiry to be
15held in England in pursuance of this Act but the inquiry does
not take place;

(b) to the costs of a party to a public local inquiry held in England
in pursuance of this Act who does not attend the inquiry.

4 Permitted development rights for changes of use: prior approvals

(1) 20In section 60 of the Town and Country Planning Act 1990 (planning permission
granted by development order) after subsection (2) insert—

(2A) Without prejudice to the generality of subsection (1), where planning
permission is granted by a development order for development
consisting of a change in the use of land in England, the order may
25require the approval of the local planning authority, or of the Secretary
of State, to be obtained—

(a) for the use of the land for the new use;

(b) with respect to matters that relate to the new use and are
specified in the order.

(2) 30In section 70A(5) of that Act (“relevant application” includes an application for
approval under section 60(2)) after “60(2)” insert “or (2A)”.

5 Local development orders: repeal of pre-adoption intervention powers

(1) The Town and Country Planning Act 1990 is amended as follows.

(2) Section 61B(1) to (7) (Secretary of State or Welsh Ministers may call in
35unadopted local development order for approval or may direct that it be
modified) cease to apply in relation to England.

(3) Accordingly—

(a) in section 61B(1) (power to call in unadopted order) after “local
planning authority” insert “in Wales,”, and

(b) 40in section 61B(6) (power to direct that unadopted order be modified)
after “local development order” insert “being prepared by a local
planning authority in Wales”.

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(4) In section 61B, after subsection (7) insert—

(7A) Where a local development order is adopted by a local planning
authority in England, that authority must submit a copy of the order to
the appropriate authority as soon after the order’s adoption as is
5reasonably practicable.

(5) In paragraph 1 of Schedule 4A (power to specify procedure for preparing local
development orders) after sub-paragraph (2) insert—

(2A) Sub-paragraph (2)(a) applies in relation to England as if for
“submission, approval, adoption,” there were substituted “adoption,
10post-adoption submission,”.

(6) In Schedule 4A omit—

(a) paragraph 4 (information about local development orders to be
included in English planning authorities’ monitoring reports under
section 35 of the Planning and Compulsory Purchase Act 2004), and

(b) 15in paragraph 1(3), the words “35 or”.

6 Limits on power to require information with planning applications

In section 62 of the Town and Country Planning Act 1990 (applications for
planning permission) after subsection (4) (limitation of power under section
62(3) to require inclusion of particulars and evidence in an application) insert—

(4A) 20Also, a requirement under subsection (3) in respect of an application for
planning permission for development of land in England—

(a) must be reasonable having regard, in particular, to the nature
and scale of the proposed development; and

(b) may require particulars of, or evidence about, a matter only if it
25is reasonable to think that the matter will be a material
consideration in the determination of the application.

7 Modification or discharge of affordable housing requirements

(1) After section 106B of the Town and Country Planning Act 1990 insert—

106BA Modification or discharge of affordable housing requirements

(1) 30This section applies in relation to an English planning obligation that
contains an affordable housing requirement.

(2) A person against whom the affordable housing requirement is
enforceable may apply to the appropriate authority—

(a) for the requirement to have effect subject to modifications,

(b) 35for the requirement to be replaced with a different affordable
housing requirement,

(c) for the requirement to be removed from the planning
obligation, or

(d) in a case where the planning obligation consists solely of one or
40more affordable housing requirements, for the planning
obligation to be discharged.

(3) Where an application is made to an authority under subsection (2) and
is the first such application in relation to the planning obligation—

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(a) if the affordable housing requirement means that the
development is not economically viable, the authority must
deal with the application in accordance with subsection (5) so
that the development becomes economically viable, or

(b) 5if paragraph (a) does not apply, the authority must determine
that the affordable housing requirement is to continue to have
effect without modification or replacement.

(4) Where an application is made to an authority under subsection (2) and
is the second or a subsequent such application in relation to the
10planning obligation, the authority may—

(a) deal with the application in accordance with subsection (5), or

(b) determine that the affordable housing requirement is to
continue to have effect without modification or replacement.

(5) The authority may—

(a) 15determine that the requirement is to have effect subject to
modifications,

(b) determine that the requirement is to be replaced with a different
affordable housing requirement,

(c) determine that the planning obligation is to be modified to
20remove the requirement, or

(d) where the planning obligation consists solely of one or more
affordable housing requirements, determine that the planning
obligation is to be discharged.

(6) A determination under subsection (5)(a), (b) or (c)—

(a) 25may provide for the planning obligation to be modified in
accordance with the application or in some other way,

(b) may not have the effect that the obligation as modified is more
onerous in its application to the applicant than in its
unmodified form, and

(c) 30may not have the effect that an obligation is imposed on a
person other than the applicant or that the obligation as
modified is more onerous in its application to such a person
than in its unmodified form.

(7) Subsection (6)(b) does not apply to a determination in response to the
35second or a subsequent application under this section in relation to the
planning obligation; but such a determination may not have the effect
that the development becomes economically unviable.

(8) In making a determination under this section the authority must have
regard to—

(a) 40guidance issued by the Secretary of State, and

(b) where the determination relates to an application to which
section 106BB applies, any representations made by the Mayor
of London in accordance with that section.

(9) The authority must give notice of their determination to the applicant—

(a) 45within such period as may be prescribed by the Secretary of
State, or

(b) if no period is prescribed under paragraph (a) (and subject to
section 106BB(5)), within the period of 28 days beginning with
the day on which the application is received, or such longer

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period as is agreed in writing between the applicant and the
authority.

(10) Where an authority determine under this section that a planning
obligation is to have effect subject to modifications, the obligation as
5modified is to be enforceable as if it had been entered into on the date
on which notice of the determination was given to the applicant.

(11) The Secretary of State may by regulations make provision with respect
to—

(a) the form and content of applications under subsection (2), and

(b) 10the notices to be given to applicants of determinations under
subsection (9).

(12) This section and section 106BC do not apply in relation to an English
planning obligation if planning permission for the development was
granted wholly or partly on the basis of a policy for the provision of
15housing on rural exception sites.

(13) In this section and section 106BC

  • “affordable housing requirement” means a requirement relating to
    the provision of housing that is or is to be made available for
    people whose needs are not adequately served by the
    20commercial housing market (and it is immaterial for this
    purpose where or by whom the housing is or is to be provided);

  • “the appropriate authority” has the same meaning as in section
    106A;

  • “the development”, in relation to a planning obligation, means the
    25development authorised by the planning permission to which
    the obligation relates;

  • “English planning obligation” means a planning obligation that—

    (a)

    identifies a local planning authority in England as an
    authority by whom the obligation is enforceable, and

    (b)

    30does not identify a local planning authority in Wales as
    such an authority.

(14) The Secretary of State may by order amend this section so as to modify
the definition of “affordable housing requirement” in subsection (13).

(15) An order under subsection (14) may have effect for the purposes of
35planning obligations entered into before (as well as after) its coming
into force.

(16) The Mayor of London must consult the local planning authority before
exercising any function under this section.

106BB Duty to notify the Mayor of London of certain applications under
40section 106BA

(1) This section applies to an application under section 106BA(2) in relation
to a planning obligation where—

(a) the application for the planning permission to which the
planning obligation relates was an application to which section
452A applied (applications of potential strategic importance
relating to land in Greater London),