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Clause 91: Assessors

171.     This gives the chair (or a deputy chair) of the Commission, at the Examining authority's request, the power to appoint an assessor to help it examine an application, providing the assessor is considered to have the relevant expertise.

Clauses 92: Interpretation of Chapter 4: "interested party" and other expressions

172.     This clause defines "interested party" and "representation" for the purposes of Chapter 4 of Part 6 of the Bill.

Part 6, Chapter 5: Decisions on applications

Clause 93: Cases where Secretary of State is, and meaning of, decision-maker

173.     This clause explains the circumstances in which the Secretary of State has the function of deciding an application for an order granting development consent and defines the express "decision-maker" in relation to such an application for the purposes of the Bill.

Clause 94: Decisions of Panel and Council

174.     This clause provides that where the Commission is responsible for deciding an application for an order granting development consent, it must have regard to:

a)     any relevant national policy statement;

b)     any matters prescribed in relation to development of that description; and

c)     any other matters which the Commission considers are both important and relevant to its decision.

175.     Sub-section (3) provides that the Commission must decide the application in accordance with any relevant national policy statement, except to the extent that one of the exceptions in sub-sections (4) to (8) applies.

Clause 95: Decisions of Secretary of State

176.     This clause provides that where it is the Secretary of State who decides an application for an order granting development consent, she must have regard to any matters prescribed and any other matters which the Secretary of State thinks are both important and relevant to her decision.

Clause 96: Matters that may be disregarded when deciding application

177.     This clause provides that a person deciding an application for an order granting development consent may disregard a representation that he considers frivolous or relates to the merits of policy set out in a national policy statement or to the compensation payable on the compulsory acquisition of land.

Part 6, Chapter 6: Suspension of decision-making process

Clause 97: Suspension during review of national policy statement

178.     This clause states that if the Secretary of State considers it necessary to review a relevant national policy statement before an application for an order granting development consent is decided, she may direct that the examination of the application is suspended by the Commission until the review of the national policy statement has been completed.

Part 6, Chapter 7: Intervention by Secretary of State

Clauses 98 and 99: When power to intervene arises / Power of Secretary of State to intervene

179.     These clauses provide that a Secretary of State may intervene and decide an application in place of the Commission in certain circumstances.

180.     The Secretary of State may intervene if she considers that this would be in the interests of defence or national security.

181.     The Secretary of State may also intervene if she is satisfied that the condition set out in clause 98(3) is met. There must have been a significant change in the circumstances on the basis of which the policy in a relevant national policy statement was decided. This change must not have been anticipated at that time. If it had been anticipated it would have meant that the policy would have been materially different; and the change would be likely to have had a material effect on the Commission's decision on the application. There must be an urgent need in the national interest for the application to be decided before the national policy statement can be reviewed.

182.     When deciding whether that condition is met, the Secretary of State must have regard to the views of the Commission and must make a direction, setting out her reasons for intervention, within four weeks of the end of the meeting held under clause 80(2). If the Secretary of State considers there to be exceptional circumstances, the direction may be given later.

Clause 100: Effect of intervention by Secretary of State

183.     This clause provides that, where the Secretary of State intervenes, the application must be referred to her. The Commission must conduct an examination of the application as directed by the Secretary of State and make a report setting out its findings and conclusions. The Commission must complete this within a timescale set by the Secretary of State. The Secretary of State must decide the application within three months of receiving the Commission's report.

Part 6, Chapter 8: Grant or refusal

Clauses 101 to 103: Grant or refusal of development consent, reasons for decision and formalities for orders

184.     Clause 101 provides that at the conclusion of consideration of an application for an order granting development consent, the decision-maker must either make an order granting development consent or refuse it. Subsection (2) provides that an order may grant development consent not only for development where consent is required but also for development which is associated with that development. Subsection (2) only applies in the case of development in England. In determining what associated development is, the authority must have regard to statutory guidance. Reasons must be given to interested parties and published (clause 102) and certain formalities observed in relation to the order (clause 103).

Part 6, Chapter 9: Legal challenges

Clause 104: Legal challenges relating to applications for orders granting development consent

185.     This clause provides that an order granting development consent, a refusal of development consent, or anything else done by the Commission or the Secretary of State in respect of an application for an order granting development consent can only be challenged by means of a claim for judicial review made in accordance with the provisions of this clause. These provide that a challenge to an order granting development consent must be made within six weeks of the order being published and a challenge to a refusal of development consent must be made within six weeks of the date when the Commission issues the statement of reasons for the refusal. A challenge to a decision of the Commission not to accept an application must be made within six weeks of the day on which the Commission notifies the applicant of its decision.

PART 7: DEVELOPMENT CONSENT ORDERS

Part 7, Chapter 1: Content of development consent orders

Clause 105: What may be included in order granting development consent

186.     This clause specifies what may be included in an order granting development consent.

187.     Subsections (1) and (2) provide that an order granting development consent may impose requirements in connection with the development for which consent is granted. The types of requirements which may be imposed include those that can be imposed under the consent regimes which currently apply to nationally significant infrastructure projects (see section 31(1)).

188.     Subsection (3) provides that an order granting development consent may also make provision for ancillary matters. Subsection (4) gives examples of types of provisions which may be included in an order. These include provisions authorising the compulsory acquisition of land, the creation, suspension and extinguishment of rights over land, the stopping up of highways, the charging of tolls and for the payment of contributions and compensation. Subsection (5) provides that these subsections are subject to the following provisions of this Chapter.

189.     The power to authorise the compulsory acquisition of land is restricted by the provisions of subsequent clauses.

190.     Subsection (6) provides that an order granting development consent may apply, modify or exclude statutory provisions and may amend, repeal or revoke the provisions of a local Act, in the circumstances described. An order may also include such provisions as are necessary or expedient in order to give full effect to its provisions.

Clause 106: Exercise of powers in relation to legislation

191.     This clause provides that before the Commission can exercise its legislation powers under clause 105(6)(a) and (b) it must send a draft of the proposed order granting development consent to the Secretary of State. If the Secretary of State considers that the provisions in the draft order would contravene Community law or Convention rights, she may direct the Commission to make specified changes to the order for the purpose of preventing the contravention arising. The Secretary of State must make any such direction within 28 days of receiving the draft order.

Clause 107: Purpose for which compulsory acquisition may be authorised

192.     This clause specifies the purposes for which an order granting development consent can authorise the compulsory acquisition of land. The Commission or the Secretary of State, as the case may be, must be satisfied that the land:

a)     is required for the development to which the development consent relates;

b)     is required to facilitate or is incidental to that development; or

c)     is replacement land (see clauses 114 and 115), and that there is a compelling need in the public interest for the land to be acquired compulsorily.

Clause 108: Guidance about authorisation of compulsory acquisition

193.     This clause allows the Secretary of State to issue guidance about the authorisation of the compulsory acquisition of land in an order granting development consent. Where the Commission wishes to include in an order authorisation to purchase land compulsorily, it must have regard to this guidance.

Clause 109: Compensation for compulsory acquisition

194.     This clause places restrictions on the provision which may be made in a development consent order regarding compensation for the compulsory acquisition of land. Existing provisions in other Acts about compensation may be applied, but not otherwise modified or excluded.

Clause 110: Statutory undertakers' land

195.     The clause specifies the conditions which must be satisfied for an order granting development consent to authorise the compulsory purchase of land belonging to statutory undertakers.

196.     If the statutory undertaker has acquired the land for the purpose of its undertaking and a representation has been made in the circumstances set out in the clause, an order granting development consent can authorise its compulsory purchase only if the Secretary of State is satisfied that:

a)     the land can be acquired and not replaced without serious detriment to the statutory undertaker's undertaking; or

b)     it can be replaced with other land without serious detriment to the statutory undertaker's undertaking.

197.     Likewise an order granting development consent may include a provision authorising the compulsory purchase of a right over land belonging to a statutory undertaker only if the Secretary of State is satisfied that:

a)     the right can be purchased without serious detriment to the undertaking; or

b)     any detriment can be remedied by the statutory undertaker's being able to use other land.

Clauses 111 and 112: Local authority land and statutory undertakers' land: general and Local authority and statutory undertakers' land: acquisition by public body

198.     Clause 111 specifies the circumstances in which an order granting development consent that authorises the compulsory purchase of land belonging to a local authority or statutory undertakers, or the compulsory acquisition of a relevant right over such land, is to be subject to special parliamentary procedure. If a representation has been made by the local authority or statutory undertakers about an application for an order granting development consent and this has not been withdrawn, any order allowing compulsory acquisition would be subject to special Parliamentary procedure, unless the promoter is a public body listed in clause 112.

Clause 113: National Trust land

199.     This clause relates to land which is held inalienably by the National Trust. It provides that in certain circumstances an order granting development consent which authorises the compulsory purchase of such land or certain rights over such land, will be subject to special Parliamentary procedure. This is the case if the National Trust has made a representation about an application for an order granting development consent and this has not been withdrawn. The special Parliamentary procedure and the system which governs it is largely contained in the Statutory Orders (Special Procedure) Act 1945.

Clause 114: Commons, open spaces etc: compulsory acquisition of land

200.     This clause provides that an order granting development consent which authorises the compulsory purchase of land forming part of a common, open space or fuel or field garden allotment will be subject to special Parliamentary procedure unless the Secretary of State is satisfied either that:

a)     replacement land has been or will be given in exchange and that it will be subject to the same rights, trusts and incidents;

b)     the land is being acquired in order to secure its preservation or improve its management; or

c)     the land being acquired does not exceed 209.03 square metres, or is required for, or partly for, the widening or drainage of an existing highway, and the giving of land in exchange for it is unnecessary.

Any replacement land must be no less in area than the land being compulsorily acquired and must be equally advantageous.

Clause 115: Commons, open spaces etc: compulsory acquisition of rights over land

201.     This clause contains similar provisions to the preceding clause in respect of the authorisation of the compulsory acquisition of a right over land forming part of a common, open space or fuel or field garden allotment. It provides that an order granting development consent, which authorises the compulsory acquisition of a right over land forming part of a common, open space or fuel or field garden allotment, will be subject to special Parliamentary procedure unless the Secretary of State is satisfied either that:

a)     the land will be no less advantageous when burdened with the right;

b)     replacement land will be given in exchange and will be subject to the same rights, trusts and incidents;

c)     the right is being acquired in order to secure the preservation or improve the management of the land; or

d)     the land over which the right is being acquired does not exceed 209.03 square metres, or the right is required in connection, or partly in connection, with the widening or drainage of an existing highway, and the giving of land in exchange for it is unnecessary.

Clause 116: Crown land

202.     This clause provides that an order granting development consent can authorise the compulsory purchase of an interest in Crown land only if the interest is for the time being held otherwise than by or on behalf of the Crown, and the appropriate Crown authority consents to the acquisition.

Clause 117: Notice of authorisation of compulsory acquisition

203.     This clause requires a person (the prospective purchaser) who has been authorised to acquire land compulsorily by an order granting development consent to serve notice of this on persons with certain interests in that land. This notice is referred to as a compulsory acquisition notice. The prospective purchaser must also fix such a notice onto a prominent place near the land to be acquired for 6 weeks, publish it in one or more local newspapers and make it available for inspection.

Clause 118: Public rights of way

204.     This clause specifies that no order granting development consent can be made that extinguishes any public right of way over land unless the authority making it is satisfied that an alternative right of way has been or will be provided, or that such an alternative right of way is not required.

Clause 119: Excavation, mining, quarrying and boring operations

205.     This clause states that an order granting development consent which authorises excavation, mining, quarrying or boring operations can be made only where the development to which the order relates to is or includes an underground gas storage facility.

Clause 120: Operation of generating stations

206.     This clause states that an order granting development consent which authorises the operation of a generating station can be made only if the development to which the order relates is for or includes the construction or extension of a new generating station.

Clause 121: Keeping electric lines installed above ground

207.     This clause states that an order granting development consent which authorises the installation of overhead electric lines can be made only if the development to which the order relates is or includes the installation of such lines.

Clause 122: Diversion of watercourses

208.     This clause states that an order granting development consent which authorises the diversion of a navigable watercourse can be made only if the new length of watercourse is easily navigable by vessels using the existing watercourse. Such an order is also taken to authorise the diversion of any tow-path adjacent to the part of the watercourse which is to be diverted.

Clause 123: Highways

209.     This clause states that an order granting development consent may authorise the charging of tolls in relation to a highway only if this was included in the application for the order. The clause also makes provision about when an order granting development consent may authorise the appropriation of a highway by a person or the transfer of a highway to a person.

Clause 124: Discharge of water

210.     This clause relates to an order granting development consent which authorises the discharge of water into inland waters or underground strata. The person to whom the order is granted does not acquire the power to take water or require discharges to be made from the source of water mentioned in the order.

Clause 125: Development of Green Belt land

211.     Where an order granting development consent includes the provisions specified in this clause in relation to Green Belt land, the Commission or the Secretary of State must notify the Secretary of State and relevant local authorities of the provision made by the order. This matches existing provisions in the Green Belt (London and Home Counties) Act 1938.

Part 7, Chapter 2: General

Clause 126: Duration of development consent order

212.     This clause provides that after a development consent order is granted the development must be begun before the end of the period prescribed by the Secretary of State or such other (shorter or longer) period as is specified in the order. Failure to begin development within this timescale leads to the order ceasing to have effect.

Clause 127: When development begins

213.     This clause replicates the definition of when development is deemed to have begun that exists in the Town and Country Planning Act 1990.

Clause 128: Benefit of development consent order

214.     This clause explains that the development consent will generally have effect for the benefit of the land mentioned in an order even if the ownership of the land is subsequently transferred. It is possible for the order to make provision to the contrary.

Clause 129: Use of buildings in respect of which development consent granted

215.     This clause clarifies that where an order granting development consent includes provisions for the construction of certain buildings, it may also make provisions for the subsequent use of these buildings.

PART 8: ENFORCEMENT

Clause 130: Offence: development without development consent

216.     This clause provides that a person commits an offence if he carries out development for which development consent is required without development consent. A person who is found guilty of this offence is liable to a fine. The maximum fine which may be imposed varies depending on whether the case is tried in the Magistrates' court or the Crown Court.

Clause 131: Offence: breach of terms of order granting development consent

217.     This clause provides that a person commits an offence if without reasonable excuse he carries out development in breach of the terms of an order granting development consent or if he does not comply with the terms of such a consent. A person who is found guilty of this offence is liable to a fine. The provisions regarding the level of the fine match those under clause 130.

Clause 132: Time limits

218.     This provision sets out time limits for bringing charges in relation to the offences created by clauses 130 and 131. A person may not be charged with an offence under clause 130 if four years have elapsed since the date on which the development was substantially completed. A person may not be charged with an offence under clause 131 if four years have elapsed since the later of the following dates: the date on which the development was substantially completed and the date on which the breach or failure to comply occurred. These provisions do not prevent a person from being charged with an offence under clause 130 or 131 if during the preceding four years an information notice has been served under clause 137 or an injunction applied for under clause 141.

Clause 133: Right to enter without warrant

219.     This clause gives a local planning authority the power to authorise a person to enter land, if it has reasonable grounds to suspect an offence is being, or has been, committed under clauses 130 or 131. Subsection (3) provides that where the property to be entered is a building used as a dwelling house 24 hours' notice of entry must be given to the occupier of the building.

Clause 134: Right to enter under warrant

220.     This clause provides that a justice of the peace may issue a warrant authorising a person, authorised by the local planning authority, to enter land. The conditions of this are:

a)     there are reasonable grounds for suspecting that an offence is being, or has been, committed under clause 130 or 131; and

b)     either entry has been, or is likely to be, refused or this is an urgent case.

221.     The warrant will authorise entry on one occasion only. The entry must take place within one month of the date of issue of the warrant and at a reasonable hour, unless the case is one of urgency.

Clause 135: Rights of entry: supplementary provisions

222.     This clause requires an authorised person entering land under section 133 or 134 to produce evidence, if requested, of the authority and purpose for entry before entering the land. It also allows an authorised person to take other persons as necessary and, if when the authorised person leaves, the owner or occupier is not present, the clause requires the authorised person to take steps to ensure the land is left as effectively secured against trespassers as it was found.

223.     This clause provides that an offence is committed if someone wilfully obstructs a person authorised to enter land under clause 133 or 134. Compensation for damage caused by an authorised person on the land may be recovered from the authority that authorised the right of entry.

 
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Prepared: 27 November 2007