|
Clause 42: Duty to consult local community
110. This clause requires the applicant to prepare and publish a statement setting out how he proposes to consult local people about the proposed development. The consultation must be carried out in the manner set out in the statement.
Clause 43: Duty to publicise
111. This clause provides that the applicant must publicise the proposed application in the prescribed manner. Regulations must require publicity to specify a deadline for responses.
Clause 44: Duty to take account of responses to consultation and publicity
112. This clause provides that, the applicant must consider any relevant responses he has received to the consultation and publicity, and take these into account before submitting an actual application to the Commission.
Part 5, Chapter 3: Assistance for applicants and others
Clause 45: Advice for potential applicants and others
113. The clause provides that the Commission may give advice to an applicant, a potential applicant or others about applying for an order granting development consent or making representations about an application or proposed application. Any such advice cannot relate to the merits of any particular application or proposed application. The Secretary of State may make regulations about giving advice, for the purpose of securing propriety. In particular, these regulations may provide for the disclosure of requests for advice and any advice by the Commission.
Clause 46: Obtaining information about interests in land
114. This clause provides that the Commission may authorise an applicant or proposed applicant to serve a notice on a person falling within one of the categories specified in subsection (3), requiring the person to give to the applicant the names and addresses of people who have an interest in the land to which the application relates. If the person fails to comply with such a notice, or wilfully gives misleading information, the person will commit an offence, and be liable to pay a fine up to level 5 on the standard scale (currently £5,000).
Clauses 47 and 48: Rights of entry and the Crown
115. Clause 47 provides that the Commission may authorise a person to enter a particular piece of land, in order to survey or take levels in connection with:
— an application for an order granting development consent, which has been accepted by the Commission; or
— an order granting development consent that includes authorisation for the compulsory purchase of land.
116. The Commission may also authorise a person to enter a particular piece of land in connection with a proposed application for an order granting development consent, but only if the proposed applicant:
a) is considering a distinct project of real substance requiring entry on to the land;
b) is likely to seek authority to compulsorily acquire the land; and
c) has complied with the consultation requirements in clause 37.
117. Subsection (5) of clause 47 makes it an offence wilfully to obstruct an authorised person who is exercising a right of entry.
118. Subsection (7) of clause 47 provides that the person entering land under this clause is liable to pay compensation for any damage caused.
119. Clause 48 modifies the rights of entry in relation to Crown land.
PART 6: DECIDING APPLICATIONS FOR ORDERS GRANTING DEVELOPMENT CONSENT
Part 6, Chapter 1: Handling of application by the Commission
Clause 49: Acceptance of applications
120. This clause provides that when the Commission receives an application for an order granting development consent, the Commission must decide whether or not to accept it. The Commission can only accept the application if it complies with the requirements set out in the Bill at clause 32. It must notify the applicant of its decision.
Clauses 50 and 51: Notifying persons of accepted application/Categories for purposes of section 50(2)(d)
121. These clauses describe the persons who must be notified of an application for an order granting development consent, which the Commission has accepted. The persons to be consulted are certain local authorities, any persons prescribed by regulations and any people in the categories set out in clause 51. The people in those categories include any owner, lessee, tenant or occupier of the land, anyone with the power to sell or release the land, anyone who has an interest in the land and anyone who may be able to make a "relevant claim" for compensation.
122. The form and content of the notice, and the manner in which it is to be given, may be prescribed in regulations by the Secretary of State. The applicant must inform the person of any deadline by which they should respond to the Commission; this deadline should not be less than 28 days.
123. Subsections (7) and (8) of clause 50 require the applicant to publicise the application in the manner set out by the Secretary of State. Any publicity must include a deadline by which people should notify the Commission of their interest or objection to the application.
Clause 52: Certifying compliance with clause 50
124. This clause provides that the applicant must certify to the Commission that he has complied with clause 50. If the applicant issues a certificate containing false or misleading information, he may be guilty of an offence and be liable to a fine.
Clause 53: Initial choice of Panel or single Commissioner
125. This clause provides that when the Commission accepts an application for an order granting development consent, the chair must decide whether the application should be handled by a Panel or by a single Commissioner. In making this decision, the chair must have regard to guidance issued by the Secretary of State and to the views of any of the other Commissioners and the chief executive of the Commission.
Clause 54: Switching from single Commissioner to Panel
126. This clause provides that, where an application for an order granting development consent is being handled by a single Commissioner, the chair can decide that it should instead be handled by a Panel. In making this decision, the chair must have regard to guidance issued by the Secretary of State and to the views of other Commissioners and the chief executive of the Commission.
Clause 55: Delegation of functions by person appointed to chair Commission
127. This clause gives the chair the power to delegate any of his functions under Part 6 of the Bill to one of the deputy chairs, subject to the limitations in subsections (5) to (10).
Part 6, Chapter 2: The Panel Procedure
Clause 56: Panel for each application to be handled under this Chapter
128. This clause provides that when the Commission has accepted an application and the chair has decided that it should be handled by a Panel, the provisions in Chapter 2 will apply.
Clause 57: Appointment of members, and lead member, of Panel
129. This clause concerns the appointment of the Panel. Subsection (1) provides that the chair of the Commission will be responsible for appointing to the Panel three or more Commissioners and appointing one of these Commissioners to chair the Panel. Before doing this the chair of the Commission must consult the other Commissioners and the chief executive of the Commission and have regard to their views.
130. Subsection (3) provides that the chair (or deputy chair) of the Commission may appoint himself to be a member of a Panel.
Clause 58: Ceasing to be member, or lead member, of Panel
131. This clause describes the circumstances in which a person ceases to be a member of the Panel. Subsection (1) provides that the person will cease to be a member of the Panel if he ceases to be a Commissioner, subject to clause 59.
132. Subsection (3) provides that a person may resign from membership of the Panel by giving notice in writing to the Commission.
133. Subsection (5) sets out the circumstances in which the chair may remove a person from membership of the Panel or remove the lead member from that office. The chair must be satisfied that the member or lead member is unable, unwilling or unfit to perform his duties.
Clause 59: Panel member continuing though ceasing to be Commissioner
134. This clause provides that if, immediately before ceasing to be a Commissioner, a Commissioner was serving on a Panel which has not yet concluded its business, the Commissioner may decide to continue as a Panel member until the Panel completes its work, unless the reason that he is no longer a Commissioner is because the Secretary of State has removed him from office because he was unable, unwilling or unfit to perform the duties of his office.
Clauses 60: Additional appointments to Panel
135. This requires the chair to the Commission to appoint another Commissioner to membership of the Panel if at any time the Panel has fewer than three members. The chair (or a deputy chair) may appoint himself.
Clause 61: Replacement of lead member of Panel
136. This clause provides that if the lead member of the Panel ceases to hold that office, the chair to the Commission must appoint another member of the Panel to chair the Panel. This person need not have been a member of the Panel before the vacancy arose. The chair (or a deputy chair) to the Commission may appoint himself.
Clause 62: Membership of Panel where application relates to land in Wales
137. This clause concerns applications for orders granting development consent, which relate to land in Wales. The clause requires a Panel that considers an application relating to land in Wales to include, if reasonably practicable, a Commissioner who was nominated for appointment as a Commissioner by the Welsh Ministers or any other Commissioner notified to the Commission by the Welsh Minsters as being a Commissioner who should be treated as a Welsh Commissioner nominated by them.
Clause 63: Supplementary provision where Panel replaces single Commissioner
138. This clause provides that if the chair of the Commission decides that an application which was being considered by a single Commissioner should instead be considered by a Panel, the single Commissioner who has considered the case may become a member of the Panel. Subsection (3) provides that the Panel may decide to treat anything done by a Single Commissioner as done by the Panel. If the Panel decides to do this, the lead member of the Panel must ensure that the Panel acquires the necessary knowledge of the previous work undertaken.
Clause 64: Panel ceasing to have any members
139. This clause provides that if the Panel ceases to have any members, a new Panel must be constituted. If this happens, the new Panel may decide to treat anything done by a former Panel as done by the new Panel. If it is decided to do this, the lead member of the Panel must ensure that the Panel acquires the necessary knowledge of the previous work undertaken.
Clause 65: Consequences of changes in Panel
140. This clause provides that the identity of the Panel will not be affected by changes to the membership of the Panel or the lead member, or any vacancies.
Clause 66: Panel to decide, or make recommendation in respect of, application
141. This clause sets out the Panel's role in making decisions on applications. Where it is the Commission's responsibility to decide an application, the Panel will examine and decide the application. Where it is the Secretary of State's responsibility to decide on an application, the Panel will examine the application, and then make a report to the Secretary of State which sets out its findings and conclusions and makes a recommendation about the decision to be made by the Secretary of State.
Clause 67: Decision-making by the Panel
142. This clause provides that a decision of the Panel will require the agreement of a majority of its members and that the lead member has a second (or casting) vote.
Clauses 68: Allocation within Panel of Panel's functions
143. This clause provides that during the examination of an application the Panel may allocate part of the examination to any one or more of its members. Where this is done the member or members may do anything the Panel as a whole could have done and their findings and conclusions will, in respect of the matters allocated, be taken to be the Panel's.
Clauses 69: Exercise of Panel's powers for examining application
144. This clause concerns the exercise of the Panel's powers for examining an application. Any such power may, unless the Panel decides otherwise, be exercised by any one or more of the Panel's members.
Part 6, Chapter 3: The single Commissioner Procedure
Clause 70: Single Commissioner to handle application
145. This clause states that the provisions of this Chapter apply where it has been decided that an application should be handled by a single Commissioner.
Clause 71: Appointment of single Commissioner
146. This clause states that the chair (or a deputy chair) to the Commission must appoint a Commissioner to handle the application and that he may make a self-appointment. The chair is required to consult, and take account of the views expressed by any other Commissioner or the chief executive.
Clause 72: Ceasing to be the single Commissioner
147. This clause describes how a person can cease to be a single Commissioner. For example if a Commissioner stops being a Commissioner, he will cease to be a single Commissioner, subject to the provisions of clause 73.
Clause 73: Single Commissioner continuing though ceasing to be Commissioner
148. This clause provides that in certain circumstances a person can continue to act as a single Commissioner although he is no longer a Commissioner. The clause makes provision corresponding to that made for Panel membership by clause 59.
Clause 74: Appointment of replacement single Commissioner
149. This clause provides that when a person ceases to be a single Commissioner a replacement Commissioner must be appointed. When this happens, the replacement Single Commissioner may decide to treat any work carried out by his predecessor as his own work. If this happens, the replacement Single Commissioner must ensure he acquires the necessary knowledge of the previous work undertaken.
Clauses 75 and 76: Single Commissioner to examine and report on application/Report from single Commissioner to be referred to Council
150. These clauses provide that the single Commissioner is responsible for examining the application and then making a report, to the authority responsible for determining the application. In the report the single Commissioner should set out his findings and conclusions and make a recommendation as to how the application should be determined. When the Commission is responsible for determining the application, it must refer the application to the Council (see paragraphs 6 to 9 of Schedule 1 to the Bill).
Clause 77: Decisions made by the Council on the application
151. This clause provides that at least five members of the Council must participate in any decision which requires majority agreement. The chair of the Council has a second (casting) vote.
Part 6, Chapter 4: Examination of applications under Chapter 2 or 3
Clause 78: Chapter applies to examination by Panel or single Commissioner
152. This clause applies the provisions of this Chapter to the examination of an application by a Panel or by a single Commissioner. Where an application is to be examined by a Panel, the Panel is the Examining authority. Where an application is to be examined by a single Commissioner, the single Commissioner is the Examining authority.
Clause 79: Examining authority to control examination of application
153. This clause provides that it is for the Examining authority to decide how to examine an application. When doing this the examining authority must comply with the provisions of this Chapter and any procedural rules made by the Lord Chancellor and must have regard to any guidance given by the Secretary of State and the Commission.
154. Subsection (3) provides that the examining authority may disregard representations which it considers are frivolous or relate to the merits of a policy set out in a national policy statement or to the compensation for the compulsory acquisition of the land.
Clause 80 Initial assessment of issues, and preliminary meeting
155. This clause requires the Examining authority to make an initial assessment of the principal issues arising on an application. When it has done this it should hold a preliminary meeting with the applicant and each other interested party. The purpose of this meeting is to enable those present to make representations as to how the application should be examined and to discuss any other matter the Examining authority wishes.
Clause 81: Examining authority's decisions about how application is to be examined
156. This clause requires the Examining authority, in the light of the discussion at the preliminary meeting, to make procedural decisions in respect of the examination of the application. Theses decisions can be made at or after the meeting. The Examining authority must inform every interested party of its decisions.
Clause 82: Written representations
157. This clause provides that the Examining authority's examination of the application should take the form of the consideration of written representations subject to any requirements in clause 83 or 84 to cause a hearing to be held and any decision of the Examining Authority to undertake something (e.g. a site visit) that is neither a hearing nor consideration of written representations. The Lord Chancellor may make procedural rules about which written representations are to be considered.
Clause 83: Hearings about specific issues
158. This clause provides that the Examining authority must arrange a hearing when it decides that it is necessary for its examination of an issue to receive oral representations, either to ensure the adequate examination of an issue, or so that an interested party has a fair chance to put their case. Each interested party will be entitled to make oral representations about the issue. Concurrent hearings may be held where a Panel of Commissioners is the examining authority.
Clause 84: Open-floor hearings
159. This clause provides that the Examining authority must arrange an open-floor hearing if at least one interested party informs the Examining authority of a wish to be heard within the specified deadline. Each interested party is entitled to make oral representations at an open-floor hearing.
Clause 85: Hearings: general provisions
160. This clause contains general provisions in respect of issue specific and open floor hearings. It provides that these should be in public and presided over by at least one member of the Panel or the single Commissioner. The Examining authority will decide how a hearing is to be conducted.
161. In particular, the Examining authority can decide if a person making an oral representation can be questioned by an interested party, and the duration of an oral representation and/or questioning. When making decisions about these matters, the Examining authority must apply the principle that it should undertake any oral questioning unless it is necessary to allow an interested party to do this in order to ensure adequate testing of any representations or that an interested party has a fair chance to put its case.
162. Subsection (8) provides that an Examining authority may refuse to allow a representation if it considers it:
a) is irrelevant or frivolous;
b) relates to the merits of policy set out in a national policy statement;
c) repeats other representations already made; or
d) relates to the compensation payable on the compulsory acquisition of land.
Clause 86: Hearings: disruption, supervision and costs
163. This clause provides that the Examining authority may exclude a person from a hearing if he behaves in a disruptive manner.
164. Subsection (2) defines what is meant by a "hearing" for these purposes.
165. Subsection (3) provides that the Examining authority's examination of an application is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 and therefore is subject to supervision by the Administrative Justice and Tribunals Council.
Clause 87: Representations not made orally may be made in writing
166. This clause states that where a person has asked to make an oral representation at a hearing, but has not done so, he can make a written representation. The Examining Authority must consider this as part of its examination of an application, if the written representation is received before it completes its examination of the application.
Clause 88: Procedure rules
167. This clause enables the Lord Chancellor to make procedural rules for the examination of applications. Subsections (1) and (3) are based on the general rule-making powers conferred by section 9 of the Tribunals and Inquiries Act 1992. Subsection (2) is included to enable rules to make provision about site visits, including site visits where the applicant is neither the owner nor occupier of the land concerned. Subsection (6) follows the 1992 Act by providing for the rules to be subject to the negative resolution procedure in Parliament.
Clause 89: Timetable for examining, and deciding or reporting on, application
168. This clause imposes a duty on the Examining authority to complete its examination of an application within six months of the last day of the preliminary meeting held pursuant to clause 80. The Examining authority must decide the application or (where the Secretary of State or the Commission's Council is responsible for taking the decision) report to the Secretary of State or the Commission within nine months of this date.
169. Subsection (4) gives the chair (or a deputy chair) of the Commission the power to extend these deadlines at any time. If the deadlines are extended, he must inform the Secretary of State of this decision, along with his justification for doing so. Any such change of date must be included in the Commission's Annual Report with an explanation of why the decision was taken.
Clause 90: Completion of examining authority's examination of application
170. This clause provides that the Examining authority must tell each interested party once it has completed its examination of the application.
| 
