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These notes refer to the Planning Bill as introduced in the House of Commons on 27th November 2007 [Bill 11]
PLANNING BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Planning Bill which was introduced in the House of Commons on 27th November 2007. They have been prepared by the Department for Communities and Local Government in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY
3. Parts 1 to 8 of the Bill create a new system of development consent for nationally significant infrastructure projects. The new system covers certain types of energy, transport, water, waste water and waste projects. The number of applications and permits required for such projects is being reduced, compared with the position under current legislation.
4. A major role in the new system is to be played by a new independent body to be called the Infrastructure Planning Commission ('the Commission'). The Commission will be responsible for examining applications for development consent for nationally significant infrastructure projects. The Commission will also be responsible for deciding any such application when there is in force a relevant national policy statement. Development consent will be given in the form of an order which may also confer upon developers certain rights for the purpose of facilitating the project. These rights may include the compulsory acquisition of land where there is a compelling need in the public interest.
5. National policy statements will set the framework for decisions by the Commission. The Secretary of State may designate a statement for the purposes of the Bill only if there has been public consultation. The Secretary of State will have a wide discretion as to how prescriptive the policy should be. Provision is made for addressing any blight caused by the publication of a national policy statement.
Bill 11—EN 54/3
6. The Secretary of State will be responsible for determining an application for development consent where she has chosen not to designate (or keep in place) a national policy statement covering the relevant type of infrastructure. The Secretary of State will receive recommendations from the Commission and will have order making powers to facilitate developments which are similar to the powers of the Commission where it is the decision maker.
7. The Commission will have to appoint Panels comprised of three or more Commissioners, or a single Commissioner, to examine the applications submitted to it. The Bill sets out the procedures for examination of an application. It is intended that in examining applications greater use is made of written representations with less reliance on oral representations; and restrictions are being placed on the use of cross examination by interested parties at a hearing.
8. The Bill sets a timetable for examination of applications and decisions. A deadline of six months is stipulated for carrying out the examination procedure and a further three months is allowed for the Commission to take a decision or (as the case may be) make recommendations to the Secretary of State.
9. Part 9 of the Bill makes various alterations to the existing Town and Country Planning regime (which will continue to apply to other types of development). Changes are being made in relation to the development plan. Local planning authorities will be required to make arrangements for decisions on certain planning applications to be taken by planning officers, with a right of review by the authority (rather than an appeal to the Secretary of State). Changes are being made to the power of local planning authorities to decline to determine subsequent applications. The right to compensation is being removed where at least 12 months' notice is given of withdrawal of planning permission by a development order. Authorities are being given express power to make non-material changes to planning permissions. The Secretary of State is to be required to determine the appropriate procedure for appeals (that is, local inquiry, hearing or written representations). Provisions are included concerning fees for planning applications and a power is created to enable fees to be imposed in connection with planning appeals.
10. Part 10 makes provision for a Community Infrastructure Levy. The Secretary of State is to be given the power to make regulations providing for the imposition of this new levy. The value of land may increase when planning permission is granted for development. The aim of the levy is to ensure that costs incurred in providing infrastructure to support the development of an area can be met, either in part or whole, by land owners who have benefitted in this way.
Part 1
11. Part 1 establishes the Infrastructure Planning Commission. The Commission must issue a code of conduct and maintain a register of Commissioners' interests and may charge a fee. Schedule 1 (which is introduced by clause 1) gives details of how Commissioners are to be appointed and their terms and conditions of appointment.
Part 2
12. Part 2 defines a national policy statement for the purposes of the new development consent system and sets out consultation requirements. This Part identifies the opportunities for bringing any legal challenges connected with a national policy statement.
Part 3
13. Part 3 defines a nationally significant infrastructure project. It does this by specifying categories of project and thresholds for a particular type of project to be a nationally significant infrastructure project. The Secretary of State has a limited order making power to amend these categories (she also has a power of direction under Part 4 which can be used to bring individual developments within the development consent regime).
Part 4
14. Part 4 imposes a requirement for development consent in respect of the development of a nationally significant infrastructure project. Where development consent is required there is no need to obtain consents under a variety of existing statutory regimes.
Part 5
15. Part 5 sets out the requirements for an application to the Commission for an order granting development consent. The Secretary of State may issue model provisions for incorporation in a draft order to accompany an application. This Part specifies who should decide applications for development consent and that the Commission must keep a register of applications.
16. This Part also contains provisions in respect of the pre-application consultation process which an applicant must undertake, and the giving of advice to the applicant or others by the Commission. It also contains powers for the Commission to authorise the serving of a notice requesting information about interests in land and to authorise entry on land in specified circumstances.
Part 6
17. Part 6 describes the process by which an application for an order granting development consent will be handled by the Commission. This Part is divided into chapters that specify the processes which will apply when an application is to be examined and decided by a Panel comprising several Commissioners (Chapter 2) or examined by a single Commissioner (Chapter 3). The examination of an application will be conducted primarily through written representations, but there will an open floor stage and where necessary other oral hearings. A timetable is set for examining, and reporting on or deciding, an application.
18. Chapter 5 describes the matters to which the Commission and the Secretary of State must have regard in deciding an application for an order granting development consent. Other than in specified exceptional circumstances, decisions by the Commission must be taken in accordance with the relevant national policy statement. The matters to which the Secretary of State must have regard when she decides applications are also specified.
19. Chapter 6 provides that the Secretary of State may direct the Commission to suspend consideration of an application while she reviews the relevant national policy statement. Chapter 7 gives the Secretary of State a power to intervene and direct that an application for an order granting development consent be referred to her in specified circumstances.
20. Chapter 8 contains provisions relating to the grant or refusal of development consent and Chapter 9 identifies the opportunities for bringing any legal challenges in connection with applications for development consent.
Part 7
21. Part 7 describes what provision may be included in an order granting development consent. These include requirements corresponding to conditions under the current legislation, matters ancillary to the development, the authorisation of the compulsory acquisition of land and the application, exclusion or modification of legislation. In respect of the authorisation of compulsory acquisition this Part sets out additional provisions which apply, for example, regarding certain types of land.
Part 8
22. Part 8 sets out the enforcement provisions for the new development consent regime. There is a new offence of carrying out development for which development consent is required at a time when no development consent is in force, as well as an offence of breaching the terms of an order granting development consent. There are provisions enabling local planning authorities to enter land, require information and seek injunctions.
Part 9
23. Part 9 provides for compensation where land is blighted by a national policy statement or in connection with an application for development consent. It makes a number of other changes to the existing town and country planning regime.
Part 10
24. Part 10 empowers the Secretary of State to establish a Community Infrastructure Levy by subordinate legislation.
Part 11
25. This sets out how the provisions of the Bill apply to the Crown. It contains provision in respect of the service of documents, the procedure for making orders and regulations, interpretation, extent and commencement.
BACKGROUND
26. At present development consent for nationally significant infrastructure projects is provided for in various pieces of legislation. Decisions on airports are taken under the town and country planning system, but there are special statutory regimes for particular types of infrastructure, such as power stations and electricity lines, some gas supply infrastructure, pipe-lines, ports (where development extends beyond the shoreline), roads and railways. Except in the case of airports (where applications are made to the local planning authority), applications for the necessary permissions and powers must be made to the relevant Minister.
27. The procedures for determining applications vary, but a local public inquiry is generally conducted by a planning inspector who examines the project in detail and considers objections. Evidence is typically tested by the cross-examination of witnesses. The inspector then writes a report including recommendations which he submits to the Minister. She considers the report and decides whether the project should be granted the consents and powers needed to allow it to proceed. In doing this the Minister must have regard to relevant government policies. It is Government policy that powers to acquire land compulsorily should be granted only where there is a compelling need in the public interest. The legislation provides very little scope for Parliament to be involved in examining applications.
28. In 2006 the Government commissioned Kate Barker to consider how planning policy and procedures could better deliver economic growth and prosperity in a way that is integrated with other sustainable development goals. The Government also asked Rod Eddington, who had been commissioned to advise on the long-term links between transport and the UK's economic productivity, growth and stability, to examine how delivery mechanisms for transport infrastructure might be improved within the context of the Government's commitment to sustainable development.
29. Rod Eddington and Kate Barker published their findings in December 2006 (see The Eddington Transport Study and Review of Land Use Planning, HMSO). On 21 May 2007 the Government published its response; the White Paper, Planning for a Sustainable Future, Cm 7120, and consulted on the proposals for 12 weeks. The White Paper set out proposals to reform the regime for development consent for nationally significant infrastructure, and other measures to change the town and country planning system.
30. Following assessment of consultation responses, the Planning Bill will implement proposals in the Planning White Paper to amend the planning regime, including introducing a single consent regime for major infrastructure projects, establishment of an independent Infrastructure Planning Commission and making changes to the town and country planning system.
STRUCTURE OF THE BILL
31. The Bill consists of eleven parts, set out as follows:
— Part 1: The Infrastructure Planning Commission
— Part 2: National policy statements
— Part 3: Nationally significant infrastructure projects
— Part 4: Requirement for development consent
— Part 5: Applications for orders granting development consent
— Chapter 1: Applications
— Chapter 2: Pre-application procedure
— Chapter 3: Assistance for applicants and others
— Part 6: Deciding applications for orders granting development consent
— Chapter 1: Handling of application by the Commission
— Chapter 2: The Panel procedure
— Chapter 3: The single Commissioner procedure
— Chapter 4: Examination of applications under chapter 2 or 3
— Chapter 5: Decisions on applications
— Chapter 6: Suspension of decision-making process
— Chapter 7: Intervention by Secretary of State
— Chapter 8: Grant or refusal of development consent
— Chapter 9: Legal challenges
— Part 7: Development Consent Orders
— Chapter 1: Content of development consent orders
— Part 9: Changes to existing planning regimes
— Chapter 1: Changes related to development consent regime
— Chapter 2: Other changes to existing planning regimes
— Part 10: Community Infrastructure Levy
— Part 11: Final provisions
32. The Bill also contains six Schedules. These are:
— Schedule 1: The Infrastructure Planning Commission
— Schedule 2: Amendments consequential on development consent regime
— Schedule 3: Tree preservation orders: further amendments
— Schedule 4: Use of land: power to override easements and other rights
— Schedule 5: Further provisions as to the procedure for certain appeals
TERRITORIAL EXTENT
33. This Bill extends to England and Wales. Most of Parts 1 to 8 (with the exception of the clauses listed in clause 187(1)(a) to (d)) and Part 11 also extend to Scotland, but only in the case of the construction of an oil or gas pipe-line which crosses the border into England.
COMMENTARY
PART 1: THE INFRASTRUCTURE PLANNING COMMISSION
Clause 1 and Schedule 1: The Infrastructure Planning Commission
34. Clause 1 provides that there will be a body called the Infrastructure Planning Commission ("the Commission").
35. Clause 1 gives effect to Schedule 1, which describes the structure of the Commission, the process by which Commissioners are appointed, and their terms and conditions of employment.
SCHEDULE 1
Schedule 1, Paragraph 1: Membership, chair and deputies
36. The Secretary of State (in these notes the Secretary of State is referred to as being female) will be responsible for appointing all Commissioners. As proposed on page 92 of the White Paper, it is intended appointments would be made according to the Code of Practice of the Commissioner for Public Appointments.
37. The Secretary of State must appoint one of the Commissioners to chair the Commission and at least two deputies to the chair.
Schedule 1, Paragraph 2: Terms of Appointment
38. The chair, deputies and other Commissioners will hold and vacate office in accordance with the terms of their appointment.
Schedule 1, Paragraphs 3 and 4: Tenure
39. This paragraph describes the tenure of Commissioners. Commissioners must be appointed for a fixed term of between 5 and 8 years. A Commissioner can resign on giving at least 3 months' written notice to the Secretary of State.
40. The Secretary of State can remove a Commissioner from office, but only if the Secretary of State is satisfied that the Commissioner:
a) is unable or unwilling to perform his duties;
b) has been convicted of a criminal offence; or
c) is otherwise unfit to perform his duties.
41. Commissioners may be reappointed at the end of their term of office. The Bill does not place a limit on the number of terms an individual may serve as a Commissioner, but the Code of Practice set out by the Committee on Standards in Public Life recommends ten years as an upper limit on the number of years a person should remain in one post.
Schedule 1, Paragraph 5: Remuneration of Commissioners
42. This paragraph states that the Commission must pay Commissioners such remuneration, allowances and pension as the Secretary of State determines. The Commission may also pay sums in respect of expenses to Commissioners.
Schedule 1, Paragraphs 6 to 9: Council
43. These paragraphs contain provisions relating to a body of Commissioners to be known as the Council. The Council's functions will include deciding applications referred under clause 76 (following the report of a single Commissioner) and responding to consultations.
Schedule 1, Paragraphs 10 to 12: Chief executive and Staff
44. Paragraph 10 provides that the Secretary of State is responsible for appointing the chief executive, who must not be a Commissioner. The chief executive will be a member of the Commissioner's staff. The Secretary of State will determine the chief executive's terms and conditions.
45. By virtue of paragraph 11 the Commission may appoint such other staff as it thinks appropriate, but must obtain the approval of the Secretary of State as to the overall number of staff if proposes to appoint and their terms and conditions. A member of the Commission's staff cannot be a Commissioner.
46. Paragraph 12 provides that the terms and conditions of service of the chief executive and other members of staff may include payment of remuneration, allowances, sums in respect of expenses and pensions.
Schedule 1, Paragraph 13: Arrangements for assistance
47. This paragraph allows the Commission to make arrangements for others to assist it and to pay fees for their assistance.
Schedule 1, Paragraphs 14 and 15: Delegation
48. Paragraph 14 sets out that the Commission may delegate to any one or more Commissioners certain functions relating to the handling of applications for orders granting development consent. Any of the Commission's other functions may be delegated to-
a) any one or more of the Commissioners;
b) the chief executive; or
c) any other member of its staff.
49. Paragraph 15 confers upon the Chief Executive the power to authorise (generally or specifically) any other member of the Commission's staff to do anything which the chief executive is authorised or required to do. An exception is made for the chief executive's role in relation to the certification of the Commission's annual accounts.
Schedule 1, Paragraphs 16 and 17: Reports
50. The Commission will be accountable to Ministers and Parliament for its overall performance as a public body. The Commission will have to submit a report to the Secretary of State at the end of each financial year relating to the performance of its functions during the year. This annual report on the activities of the Commission should give details of the exercise of its powers to authorise the compulsory acquisition of land and such matters as the Secretary of State directs the Commission to include. This report must be published by the Commission and be laid before Parliament by the Secretary of State. The Secretary of State can also require the Commission to provide him with a report or information about any aspect of the Commission's work.
Schedule 1, Paragraph 18: Funding
51. The Secretary of State can make payments to the Commission out of money provided by Parliament as and when she considers it appropriate and subject to such conditions as the Secretary of State considers appropriate.
Schedule 1, Paragraph 19: Accounts
52. The Commission, in accordance with the normal accounting practice for public sector bodies, is required to keep accounts in such form as the Secretary of State directs. The Commission must prepare annual accounts for each financial year and send a copy to the Secretary of State and the Comptroller and Auditor General. The Secretary of State must lay a copy of the annual accounts and the Comptroller and Auditor General's report before Parliament each year.
Schedule 1, Paragraph 20: Status
53. The Commission and its staff are not to be regarded as servants or agents of the Crown.
Schedule 1, Paragraph 21: validity of proceedings
54. The validity of the Commission's work is not affected by a defect in the appointment of a Commissioner (including the chair or deputy chair), nor if there is a vacancy amongst any of the Commissioners.
Schedule 1, Paragraph 22: Application of seal and proof of instruments
55. The signature of a Commissioner or an authorised member of the Commission's staff is required to authenticate the Commission's seal. The Commission may enter into contract without the use of a seal, in the same circumstances as an individual, provided that the person acting on behalf of the Commission has been authorised by the Commission to do this.
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