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Schedule 1, Paragraph 23: Parliamentary Commissioner
56. The Commission is to be added to the list of bodies which are subject to investigation by the Parliamentary Commissioner for Administration in the event of maladministration.
Schedule 1, Paragraphs 24 and 25: Disqualification/Public records
57. Paragraph 24 provides that Commissioners are disqualified from membership of the House of Commons and the Northern Ireland Assembly. The effect of paragraph 25 is to make the administrative records of the Commission public records for the purposes of the Public Records Act 1958.
Schedule 1, Paragraph 26: Freedom of information
58. By virtue of paragraph 26 the Commission is added to the list of bodies which are subject to the requirements of the Freedom of Information Act 2000 (and therefore also the requirements of the Environmental Information Regulations 2004, SI 2004/3391).
Clause 2: Code of conduct
59. This clause provides that the Commission must issue a code of conduct for its Commissioners, which should include a requirement for Commissioners to disclose all relevant interests, including financial information. The code of conduct and the register of interests must be published. The code of conduct should be reviewed regularly, and may from time to time be amended. A failure by a Commissioner to observe the Code will not in itself make a Commissioner liable to criminal or civil proceedings.
Clause 3: Register of Commissioners' interests
60. The Commission must establish a procedure for the disclosure and registration of financial and other interests by Commissioner and arrange for a register of entries to be published.
Clause 4: Fees
61. This clause provides that the Secretary of State may make regulations to allow the Commission to charge fees for the performance of any of its functions and non-exhaustively lists matters that may be covered by any regulations, for example, the amount which may be charged, who is liable to pay a fee to be charged and when the fee is payable.
PART 2: NATIONAL POLICY STATEMENTS
Clause 5: National Policy Statements
62. Subsection (2) of this clause defines what is meant by the term "national policy statement".
63. Subsections (3) and (4) provide that a national policy statement can be designated only if the Secretary of State has first carried out an appraisal of the sustainability of the policy and complied with the consultation requirements mentioned in clause 7.
64. Subsection (5) describes examples of what types of policy may be contained in a national policy statement. These examples include setting out criteria to be applied in deciding whether a location is suitable for a particular description of development, and identifying a location as suitable (or potentially suitable) for development.
65. Subsection (6) provides that a national policy statement should include reasons for the policy in the statement.
66. Subsection (7) requires the Secretary of State to arrange for a national policy statement to be published.
Clause 6: Review
67. This clause requires the Secretary of State to keep national policy statements under review. Provision is made for further appraisal of the sustainability of, and consultation on, proposed amendments and publication if the statement is amended.
Clauses 7 and 8: Consultation and publicity / Consultation on publicity requirements
68. Where the Secretary of State proposes to designate a statement to be a national policy statement, or amend a national policy statement, the Secretary of State must carry out such consultation and arrange for associated publicity as she thinks appropriate. The Secretary of State must also consult such persons as are prescribed.
69. If the new or amended proposals refer to a particular location as being suitable (or potentially suitable) for a specified type of development, the Secretary of State must ensure that there is suitable publicity for the proposal in that location. Clause 8 sets out that in deciding what publicity is appropriate for this purpose the Secretary of State must consult the local authority in which the land is located and adjoining local authorities. If the location concerned is in Greater London, the Secretary of State must also consult the GLA.
Clause 9: Sustainable development
70. This clause provides that where the Secretary of State is either designating or reviewing a national policy statement, she must do so with the objective of contributing to sustainable development.
Clause 10: Suspension pending review
71. This clause provides that the Secretary of State may suspend the operation of part or all of a national policy statement if she decides that since the national policy statement was issued or reviewed there has been a significant change in circumstances which was not anticipated. Suspension by the Secretary of State is possible only where she thinks that if the change had been anticipated any of the policy included in the statement would have been materially different.
Clause 11: Pre-commencement statements of policy, consultation etc
72. This clause provides that the Secretary of State may designate a statement as a national policy statement even if it was issued by the Secretary of State before clause 5 comes into force, or if it refers to other such statements issued before this date. An example of a statement to which this clause would apply is The Future of Air Transport, December 2003 (Cm6046).
73. Similarly, the Secretary of State may treat any sustainability appraisal of a policy statement as meeting the requirements of subsection (3) of clause 5 even if it was carried out before that provision comes into force.
74. Subsection (4) sets out that the Secretary of State may take account of any consultation or publicity carried out before clause 5 comes into force when complying with the requirements set out in clause 7.
Clause 12: Legal challenges relating to national policy statements
75. This clause provides that legal challenges in connection with national policy statements can be brought only by judicial review and only during a specified six-week period.
PART 3: NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTS
Clause 13: Nationally significant infrastructure projects: general
76. Subsection (1) lists the categories of project which are "nationally significant infrastructure projects" for the purposes of the Bill. Further details of these categories are given in the immediately following clauses.
77. Subsection (3) enables the Secretary of State to make an order which amends the categories of nationally significant infrastructure project, subject to the limitation in subsection (5) that new types of project may be added only if they are in the fields of energy, transport, water, waste water or waste.
Clause 14: Generating stations
78. Subsection (1) provides that the construction or extension of a generating station is a nationally significant infrastructure project only if it comes within subsection (2) or (3). Generating station has the same meaning as in section 36 of the Electricity Act 1989.
79. Subsection (4) defines what is meant by an "offshore" generating station.
Clause 15: Electric lines
80. This clause describes the circumstances in which the installation of an electric line above ground will be considered a nationally significant infrastructure project.
Clause 16: Underground gas storage
81. This clause states that development relating to the underground storage of gas is a nationally significant infrastructure project only if it comes within subsection (2) or (3). Underground gas storage has the same meaning as in section 4 of the Gas Act 1965, which makes it compulsory for a gas transporter to obtain consent from the Secretary of State for such operations.
82. Development of underground gas storage by persons other than gas transporters is currently regulated under the Town and Country Planning Act 1990. This clause therefore ensures that work being done in Wales by persons other than gas transporters is decided by Welsh Ministers in accordance with the devolution settlement.
Clause 17: Pipe-lines
83. This clause sets out the circumstances in which the construction of a pipe-line is a nationally significant infrastructure project. The definition of a pipe-line in clause 17 is based on the definition of a cross-country pipe-line in section 1 of the Pipe-lines Act 1962, which is a pipeline over 10 miles (16.093km) long on land, along with associated apparatus and works. This clause sets out that pipe-lines which fall within the definition of section 1 of the Pipe-lines Act 1962 will henceforth be classed as nationally significant infrastructure projects and so will require development consent. The clause avoids disturbing the devolution settlement under which pipe-lines wholly situated within Scotland require consent from Scottish Ministers under section 1 of the Pipe-lines Act.
Clause 18: Highways
84. This clause sets out the circumstances in which the construction of a highway is a nationally significant infrastructure project. The terms "trunk road" and "special road" have the same meanings as in the Highways Act 1980. This clause has the effect that the construction in England of a road which forms part of the strategic road network (including motorways), where the Secretary of State is the highway authority, will be a nationally significant infrastructure project.
Clause 19: Airports
85. This clause sets out the circumstances in which the construction or extension of an airport is a nationally significant infrastructure project. Currently, planning permission under the Town and Country Planning Act 1990 is needed for developments. To avoid disturbing the devolution settlement, Welsh Ministers will retain their existing powers to determine applications for new airports or extensions in their territory, while applications relating to nationally significant airport projects in England will be determined under the new regime.
Clause 20: Harbour facilities
86. This clause sets out the circumstances in which the construction or extension of harbour facilities is a nationally significant infrastructure project.
Clauses 21 and 22: Railways and Rail Freight interchanges
87. These clauses set out the circumstances in which the construction of a railway or a rail freight interchange is a nationally significant infrastructure project. Only railways which would be situated wholly in England are included.
Clauses 23 and 24: Dams and reservoirs and Transfer of water resources
88. These clauses set out the circumstances in which the construction or extension of a dam or reservoir or development relating to the transfer of water resources is a nationally significant infrastructure project. Only projects in England are included.
Clause 25: Waste water treatment plants
89. This clause sets out the circumstances in which the construction of a waste water treatment plant is a nationally significant infrastructure project. Only projects in England are included.
Clause 26: Hazardous waste facilities
90. This clause sets out the circumstances in which the construction of a hazardous waste facility is a nationally significant infrastructure project. Only projects in England are included.
PART 4: REQUIREMENT FOR DEVELOPMENT CONSENT
Clause 27: When development consent is required
91. Subsection (1) imposes a requirement of development consent for development which is, or forms part of, a nationally significant infrastructure project.
92. Subsection (2) provides that where there is doubt as to whether a particular project does or does not require development consent, then the Commission will decide the question.
Clause 28: Meaning of "development"
93. This clause defines what constitutes "development" of a nationally-significant infrastructure project. It provides that "development" has the same meaning as "development" in section 55 of the Town and Country Planning Act 1990 subject to subsections (2) and (3).
94. The effect of subsection (2) is that the conversion of a generating station to enable it to use gas or petroleum as a fuel source and starting to use strata underground for the purposes of gas storage count as "development" for the purposes of the Bill. This replicates the position under section 14 of the Energy Act 1976, which gives the Secretary of State the power to direct that such conversions should not take place. Likewise, starting to use natural porous strata underground for the purposes of gas storage currently requires the consent of the Secretary of State under section 4 of the Gas Act 1965.
95. Subsection (3) replicates provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979 and makes it clear that where the promoter of a nationally significant infrastructure project wishes to conduct these types of works to heritage assets, this would constitute development and, therefore, need to be the subject of an application for an order granting development consent to the Commission.
Clause 29: Effect of requirement for development consent on other consent regimes
96. This clause provides that where a project requires development consent under this Act, it will no longer require certain other consents under certain existing consent regimes. These consent regimes are listed in subsection (1), and include:
— planning permission under Part 3 of the Town and Country Planning Act 1990 (or, in relation to the Scottish part of a cross-border oil or gas pipe-line, planning permission under Part 3 of the Town and Country Planning (Scotland) Act 1997);
— listed building consent under section 8 of the Planning (Listed Buildings and Conservation Areas) Act 1990;
— conservation area consent under section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990;
— scheduled monument consent in England and Wales under section 2 of the Ancient Monuments and Archaeological Areas Act 1979.
97. The Highways Act 1980 gives the Secretary of State the ability to make or confirm orders about a variety of matters to do with highways, including the construction of new highways. Subsection (3) provides that where construction of the highway requires development consent, the Secretary of State may not make or confirm such orders until after the highway has been opened.
Clause 30: Directions in relation to projects of national significance
98. This clause provides that the Secretary of State may direct that an application made to the relevant authority for a consent or authorisation mentioned in clause 29(1) or (2) should be referred to the Commission, which will then treat it as an application for development consent. The Secretary of State can make such a direction only if the development is or forms part of a project in one of the fields mentioned in subsection (5) of clause 13, the development would be wholly in England and she considers that the project is of national significance. The Secretary of State must give reasons for making such a direction.
99. If the Secretary of State is considering making such a direction, she may direct the relevant authority to take no further action until she has reached her decision.
Clause 31 and Schedule 2: Amendments consequential on development consent regime
100. This clause and the Schedule make consequential amendments to existing consent regimes. In the most part, these consequential amendments clarify that where development consent is required for a project under this Bill, requirements for other consents no longer apply.
a) Green Belt (London and Home Counties) Act 1938: restrictions on the erection of buildings no longer apply where the project requires development consent under this Bill.
b) Coast Protection Act 1949: consent is no longer required from the Secretary of State for works detrimental to navigation where the project requires development consent under this Bill.
c) Pipe-lines Act 1962: authorisation is no longer required from the Secretary of State in order to construct a cross-country pipe-line where the project requires development consent under this Bill. A diversion of a pipe-line is to be treated as an extension for the purposes of this Bill.
d) Harbours Act 1964: it will no longer be possible to make harbour revision orders or harbour empowerment orders where the project requires development consent under this Bill.
e) Gas Act 1965: it will no longer be possible to make storage authorisation orders where the project requires development consent under this Bill. Where an underground gas storage is covered by an order granting development consent, the Secretary of State will no longer be able to prevent mining and other operations in the vicinity of the underground gas storage, set safety conditions or order works to remedy a breach of a protective area.
f) Energy Act 1976: it will no longer be necessary to seek permission for a conversion of a power station to gas or petroleum fuel from the Secretary of State under the 1976 Act, where the project requires development consent under this Bill.
g) Ancient Monuments and Archaeological Areas Act 1979: scheduled monument authorisation is no longer required from the Secretary of State for works affecting scheduled monuments where the project requires development consent under this Bill.
h) Highways Act 1980: it will no longer be possible for the Secretary of State to make orders or construct highways under the provisions of the Highways Act 1980, where the project requires development consent under this Bill.
i) Electricity Act 1989: consent is no longer required from the Secretary of State to construct a generating station (see section 36 of the 1989 Act) or overhead electricity lines (see section 37 of the 1989 Act), where the project requires development consent under this Bill.
j) Town and Country Planning Act 1990: planning permission under section 57 is no longer required for a project that constitutes a nationally significant infrastructure project. Projects which require development consent will be exempted from the provisions in respect of tree preservation orders and the preservation of trees in conservation areas.
k) Planning (Listed Buildings and Conservation Areas) Act 1990: listed building consent is no longer required from the Secretary of State for works affecting listed buildings where the project requires development consent under this Bill, and in the case of such a project conservation area consent is no longer required for works involving demolition of buildings in a conservation area.
l) Planning (Hazardous Substances) Act 1990: as part of an order granting development consent, the authority determining an application for consent may deem that the project has received hazardous substances consent. A hazardous substances authority may subsequently revoke or modify a hazardous substances consent so deemed.
m) New Roads and Street Works Act 1991: it will no longer be possible for the Secretary of State to make a toll order where the project requires development consent under this Bill.
n) Water Industry Act 1991: it will no longer be possible for the Secretary of State to make a compulsory works order where the project requires development consent under this Bill.
o) Transport and Works Act 1992: it will no longer be possible for the Secretary of State to make an order under section 1 or 3 of the 1992 Act where the project requires development consent under this Bill.
PART 5: APPLICATIONS FOR ORDERS GRANTING DEVELOPMENT CONSENT
Part 5, Chapter 1: Applications
Clause 32: Applications for order granting development consent
101. This clause sets out that where development consent is required under the new single consents regime, promoters of nationally significant infrastructure projects will need to submit an application to the Commission. The application must be in the prescribed form, and accompanied by the community involvement statement and such other documents and information as are prescribed. The Commission has the power to give guidance in connection with applications.
102. In prescribed types of case, applications may be made only if an agreement as to execution of works under section 278 of the Highways Act 1980 is in force in connection with the proposed development.
Clauses 33: Model provisions
103. This clause allows the Secretary of State to prescribe model provisions that developers may use if required to prepare a draft order to accompany an application for an order granting development consent. The Commission must have regard to any model provisions when making an order granting development consent. A similar power to issue model clauses already exists in section 8 of the Transport and Works Act 1992 (see the Transport and Works (Model Clauses for Railways and Tramways) Regulations 2006, SI 2006/1954), and model clauses are used extensively by promoters.
Clause 34: Register of applications
104. The clause requires the Commission to maintain a register of applications for orders granting development consent and to publish this register or make arrangements for its inspection by the public.
Clause 35: Applications by the Crown for orders granting development consent
105. This clause allows the Secretary of State by regulations to modify or exclude certain statutory provisions in relation to applications made by the Crown for an order granting development consent. Regulations may relate to:
a) the procedure to be followed before such applications are made;
b) the making of such applications;
c) the decision-making process.
Part 5, Chapter 2: Pre-application procedure
Clause 36: Chapter applies before application is made
106. This clause applies Chapter 2 to a proposed application for an order granting development consent and defines some of the terms used in the Chapter.
Clauses 37 to 39: Duty to consult
107. These clauses require the applicant to consult certain people and categories of people about the proposed application. The consultees are certain local authorities and persons with rights over land and other prescribed persons.
Clause 40: Timetable for consultation under clause 37
108. This clause provides that the applicant must give each consultee a deadline for responding to the consultation, but this must not be earlier than 28 days after receipt of the consultation documents.
Clause 41: Duty to notify Commission of proposed application
109. This clause provides that the applicant must give the Commission a copy of the consultation documents on or before commencing consultation under clause 37.
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