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Clause 136: Rights of entry: the Crown
224. This clause specifies that the rights of entry powers at clauses 133 and 134 do not apply to Crown land.
Clause 137: Power to require information
225. This clause enables a local planning authority to serve an information notice on the owner/occupier of land or anyone carrying out work on land or using it for any purpose. The power may be exercised where the authority suspects an offence under clause 130 or 131 may have been committed in respect of the land. The information notice may require the recipient to provide information about work being carried out, the use of the land and any other activities. The notice may also require details about any development consent order applying to the land. Subsection (4) requires the notice to set out the likely consequences of failing to respond. The recipient must send the information required in writing to the local planning authority.
Clause 138: Offences relating to information notices
226. This clause provides that a person commits an offence if, without reasonable excuse, he fails to comply with any requirement of an information notice, within a period of twenty one days beginning on the day the notice is served. The offence is punishable with a fine. In addition, a person commits an offence if he makes a statement in response to the notice that he knows to be false or misleading or is reckless as to whether it is true or false. This offence is also punishable by a fine.
Clause 139: Notice of unauthorised development
227. Subsection (2) of this clause applies where a person has been found guilty of an offence under clause 130. In such a case, the local planning authority may serve an unauthorised development notice requiring the person to remove the unauthorised development and return the land to its previous condition. Subsection (4) of this clause applies where a person has been found guilty of an offence under clause 131. In such a case the local planning authority may serve an unauthorised development notice requiring the person to remedy the breach or failure to comply. The notice must specify the period within which these steps must be taken, and different periods may be specified for different steps.
Clause 140: Execution of works required by unauthorised development notice
228. This clause applies where steps have not been taken to comply with an unauthorised development notice within the period for compliance set out in the notice. In such a case, the local planning authority may enter the relevant land and carry out the works required in the notice and recover any expenses reasonably incurred in doing so from the owner of the land. This clause provides for such expenses and other amounts to be deemed to be incurred or paid for the use and at the request of the person found guilty of the offence under clause 130 or 131. The clause contains a power to apply certain provisions of the Public Health Acts 1936. It also provides that a person commits an offence if the person wilfully obstructs a person acting under powers conferred by the clause.
Clause 141: Injunctions
229. This provision enables a local planning authority to apply to the County Court or to the High Court for an injunction when it considers it necessary or expedient to prevent an actual or anticipated offence under clause 130 or 131. The Court may grant such an injunction as it thinks fit for the purpose of restraining the activity which constitutes the offence.
Clause 142: Isles of Scilly
230. This clause allows the Secretary of State to make an Order enabling the Council of the Isles of Scilly to carry out any functions set out in Part 8 that are exercisable by a local planning authority. The Secretary of State must consult the Council of the Isles of Scilly before making such an Order.
PART 9: CHANGES TO EXISTING PLANNING REGIMES
Clauses 143: Planning obligations
231. This clause allows the promoter of a nationally significant infrastructure project to enter into agreements with local authorities, in the same way as a developer seeking planning permission under the Town and Country Planning Act 1990.
232. Only the Commission or (as the case may be) the Secretary of State will be able subsequently to modify or discharge a planning obligation entered into in connection with an application (or proposed application) for an order granting development consent. It will be for the local planning authority to enforce the obligation. Provision is made concerning legal challenges against the Commission or the Secretary of State in connection with planning obligations.
Clauses 144 and 145: Blighted land
233. A national policy statement identifying a location as a suitable (or potentially suitable) location for a nationally significant infrastructure project may create blight at that location, reducing land values and making it hard to sell the land. Blight may also result from an application being made for an order granting development consent authorising the compulsory acquisition of land.
234. Clause 144 amends section 169 of, and Schedule 13 to, the Town and Country Planning Act 1990 (which extends to England and Wales), so as to allow owner occupiers adversely affected in this way to have the benefit of the existing statutory provisions relating to blight. Subsection (3) states that the "appropriate authority" (who should receive the blight notice) is in the case of blight caused by a national policy statement the Secretary of State.
235. Clause 145 makes provision for blight caused in Scotland by a national policy statement identifying a location as a suitable (or potentially suitable) location for an oil or gas cross-country pipe-line, and for blight caused in Scotland by a proposal to compulsorily acquire land for such a pipe-line.
Clause 146: Local development documents
236. Clause 146 amends the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") with regard to supplementary planning documents and statements of community involvement. In these notes on this clause, "supplementary planning document" means a document that for the purposes of PCPA 2004 is a local development document but is not a development plan document.
237. Subsection (2) provides for amendments such that local planning authorities will no longer need to list supplementary planning documents in their local development schemes. Subsection (5)(a) removes the requirement for supplementary planning documents to be produced in accordance with the local development scheme. The result will be that supplementary planning documents can be produced by local planning authorities without the agreement of the Secretary of State although they will continue to have the status of local development documents (and the Secretary of State will still be able to require pre-adoption modification of supplementary planning documents that the Secretary of State considers unsatisfactory). Subsection (5)(d) removes the requirement to carry out and report on a sustainability appraisal of the proposals in a supplementary planning document.
238. Subsection (3)(a) removes the requirement for the statement of community involvement to be specified in the local development scheme and subsection (4)(c) removes the requirement for an independent examination of the statement of community involvement.
Clause 147: Development plan documents: climate change policies
239. Clause 147 places a duty on local planning authorities when preparing their development plan documents to include policies in relation to the development and use of land which take action on mitigating and adapting to climate change.
240. The duty is set within the context of section 19(2) of the PCPA 2004 which states that in preparing a local development document local planning authorities must have regard to national policies and advice contained in guidance issued by the Secretary of State. In practice this will be the Planning Policy Statement on Climate Change.
241. The duty will not apply to those plans in an advanced state of preparation or to completed plans before they can be revised. The intention is to achieve this by use of the commencement power.
Clause 148: Power of High Court to remit strategies, plans and documents
242. The provisions of Clause 148 amend section 113 of the PCPA 2004. Section 113 provides that certain development-related strategies, plans and documents may be challenged only by way of High Court proceedings under section 113. At present, if the Court upholds a challenge, its only power is to quash the whole or part of the document concerned. Preparation of the document has then to begin again. The amendments mean that the Court may instead: direct that a strategy, plan or document be treated as still being an unapproved/unadopted draft; send a strategy, plan or document back to any stage in its production process by specifying which steps in the process can be considered as having being taken satisfactorily; and give directions as to the action to be taken relating to its preparation, publication, adoption or approval. Section 113 as amended applies to all strategies, plans and documents in England and Wales listed in section 113(1).
Clause 149: Power of High Court to remit unitary development plans in Wales
243. Clause 149 makes the same provision in relation to unitary development plans in Wales that are the subject of current transitional provisions. The intention of these arrangements is to enable certain local planning authorities in Wales to complete unitary development plans under the Town and Country Planning Act 1990 ("the 1990 Act") before embarking on the local development plans required by the PCPA 2004.
Clause 150: Determination of planning applications by officers
244. Clause 150 inserts new sections 75A, 75B, 75C, 75D and 78ZA into the 1990 Act. Its purpose is to introduce, in relation to certain types of development, a requirement for local planning authorities to make arrangements for certain planning applications to be determined by officers of the authority. For these applications, it establishes a right of review of the officer's decision by the local planning authority and restricts the right of appeal to the Secretary of State under section 78 of the 1990 Act.
245. New section 75A requires local planning authorities in England to specify the types of planning applications which will be determined by an officer of the authority and which would be reviewable by the local planning authority following refusal, or the granting of permission subject to conditions.
246. Regulations may specify descriptions of planning applications which must and must not be subject to arrangements made under this section and may make provision about officers who are to determine applications.
247. The purpose of subsection (6) is to allow the local planning authority, or a committee or sub-committee of the authority, to choose to determine an application that would normally be determined by an officer under arrangements made under this section. Subsection (7) provides that arrangements made under this section will not prejudice the power of the local panning authority to delegate the determination of planning applications not of a type specified under this section.
248. Subsection (8) sets out the definition of "planning application" for the purposes of this clause. This includes:
— an application under section 73 of the 1990 Act (application for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted); and
— an application for the consent, agreement or approval of a local planning authority required by a condition imposed on a planning permission.
249. But, in both cases, only where the previous planning permission was granted either by an officer acting under arrangements made under this section or a local planning authority acting under arrangements made under new sections 75C or 75D.
250. New section 75B allows existing provisions of the 1990 Act (or regulations made under it) on the determination of planning applications to be applied to determinations by officers under section 75A.
251. New section 75C provides for a review by the local planning authority of an application which has been determined by an officer under section 75A. It applies where the officer has either refused the application or granted it subject to conditions. Subsection (6) prohibits the delegation to an officer of a local planning authority's review functions under this section.
252. New section 75D caters for circumstances where the local planning authority has failed to give notice of a decision on an application to which arrangements under section 75A apply. In such circumstances the local planning authority must determine the application if asked to do so by the applicant if the request is made in the prescribed form and before the end of the prescribed period. The purpose of subsection (6) is to allow existing provisions of the 1990 Act (or regulations made under it) on the determination of planning applications to be applied to determinations by a local planning authority under this section. The local planning authority cannot delegate its functions under this section to an officer.
253. New section 78ZA restricts the right of appeal to the Secretary of State in circumstances where arrangements made pursuant to section 75A provide for the application to be determined by an officer. An appeal may only be brought under the existing section 78(1) where a local planning authority has failed to complete a review of the case under section 75C by the end of the prescribed period. An appeal may be brought under section 78(2) only where the local planning authority or a committee or sub-committee of the authority have decided to determine the application themselves or the authority have been required to determine the application under section 75D because they have failed to give notice of a decision.
Clause 151: Determination of applications for certificates of lawful use or development by officers
254. Clause 151 inserts new sections 193A, 193B, 193C, 193D, and 195A into the 1990 Act. These new sections apply similar provisions to those set out above for planning applications (clause 150) to applications for certificates of lawful use or development.
Clause 152: Validity of decisions made on reviews
255. Clause 152 amends section 284 of the 1990 Act and inserts a new section 286A. The purpose of the amendment to section 284 is to provide that the only means of challenge to a decision on a review of a case by a local planning authority under section 75C or section 193C is via an application to the High Court under the new section 286A. New section 286A provides that a person aggrieved by a decision on a review by a local planning authority may make an application to the High Court within 6 weeks of the date of decision. The High Court has the power to quash the decision on the grounds set out in subsection (4).
Clause 153: Determination of listed building applications by officers
256. Clause 153 inserts new sections 19A, 19B, 19C, 19D and 20ZA into the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act"). These new sections make provision for listed buildings applications similar to that set out above for planning applications (clause 150).
Clause 154: Power to decline to determine subsequent application
257. Clause 154 amends section 70A of the 1990 Act and section 81A of the Listed Buildings Act. The sections in these two Acts provide powers for local planning authorities to decline to determine an application for planning permission, listed building consent or conservation area consent: if it is the same or substantially the same as an application which, within the previous two years, the Secretary of State has called in and refused, or dismissed on appeal; or if the local planning authority has refused two similar applications in that period and there has been no appeal. This amendment ensures that a local planning authority is not prevented from exercising its powers under section 70A of the 1990 Act or 81A of the Listed Buildings Act to decline to determine an application by the fact that an appeal has been made but has been either withdrawn or abandoned before being determined.
Clause 155: Removal of right to compensation where notice given of withdrawal of planning permission
258. Clause 155 inserts a new subsection (3B) into section 108 of the 1990 Act. Section 107 of the 1990 Act sets out the entitlement to compensation where planning permission is revoked or modified. Section 108 extends this entitlement to compensation to circumstances where planning permission granted by a development order or a local development order is withdrawn. The effect of new subsection (3B) is that there will be no entitlement to compensation where at least 12 months prior to planning permission granted by development order or local development order being withdrawn, notice was given of the intention to do so.
Clause 156: Power to make non-material changes to planning permission
259. Clause 156 inserts a new section 96A into the 1990 Act. Its purpose is to introduce express power for a local planning authority to be able to make a change to a planning permission if they are satisfied that that change is not material. In determining whether a change is material, a local planning authority must have regard to the effect of the change and any previous changes made under section 96A to the original planning permission: see new section 96A(2).
Clause 157 and Schedule 3: Tree preservation orders
260. Clause 157 amends the tree preservation order provisions of the Town and Country Planning Act 1990. In short, it provides for the transfer of provisions from tree preservation orders into regulations.
261. Subsections (2) to (6) repeal various provisions of the 1990 Act which set out provision that may be included in tree preservation orders, including: (1) provision prohibiting works to trees without the consent of the local planning authority; (2) exemptions which allow works to protected trees without consent; (3) provision regulating applications for consent to carry out works to trees, and appeals; (4) provision for the payment of compensation for loss or damage caused by tree preservation orders.
262. Subsection (7) enables these deleted provisions of the 1990 Act to be replaced by provision included in regulations ("tree preservation regulations"). For this purpose it inserts seven new sections to the Act. New section 202A makes general provision about the regulations, which would be subject to negative resolution procedure. New section 202B to 202G contain additional details about the sort of provision that may be contained in the regulations. In particular, the regulations may include provision about: the form of tree preservation orders; the procedures to be followed where tree preservation orders are to be confirmed; the prohibited activities in relation to trees; applications for consent to carry out works to trees; powers to give consent to works subject to conditions; appeals against decisions to refuse consent; entitlement to compensation following decisions on applications for consent; and the keeping of public registers containing information on tree preservation orders.
263. Schedule 3 makes further amendments needed to give effect to the transfer of provisions from tree preservation orders to regulations.
Clause 158: Existing tree preservation orders: transitional provisions
264. Clause 158 makes transitional provisions about tree preservation orders made before these clauses come into force.
265. Subsection (2) has the effect that, when the clause comes into force, the regime set out in tree preservation regulations will apply to trees covered by an existing order in place of the particular regime set out in the order. The order will continue to have effect, however, for the purposes of identifying the trees, groups of trees or woodlands to which it applies.
Clause 159 and Schedule 4: Use of land: power to override easements and other rights
266. This clause introduces this Schedule which amends section 237 of the 1990 Act so as to authorise a local authority in England to override easements and other rights restricting the use of land which it has acquired or appropriated for planning purposes. The local authority can only do this if the use is in accordance with planning permission. Under section 237 it is already possible for a local authority, in these circumstances, to override easements and other rights restricting the execution of works on land.
267. Compensation will be payable for an interference or breach of an easement or other rights under this provision. Schedule 3 also amends the equivalent provisions in other legislation.
Clause 160 and Schedule 5: Determination of procedure for certain appeals
268. The purpose of clause 160 is to require the Secretary of State to determine the procedure by which certain appeals made under the 1990 Act, the Listed Buildings Act and the Hazardous Substances Act should be considered. The procedure could be a local inquiry, a hearing or written representations, depending on whichever the Secretary of State considers appropriate. The Secretary of State must make the determination within the required period, notify the appellant and local planning authority of which procedure has been selected, and publish the criteria that are to be applied in determining the appeal method.
269. Schedule 5 contains amendments to the 1990 Act, the Listed Buildings Act and the Hazardous Substances Act that are consequential on the new provisions inserted by clause 160.
Clause 161: Fees for planning applications
270. Clause 161 substitutes section 303 of the 1990 Act. The new elements are in subsections (2) and (4) of the substituted section. There are also new supplementary provisions in subsections (5)(a) and (f) and (6) of the substituted section.
271. Subsection (2) enables the appropriate authority (being the Secretary of State in England or the Welsh Ministers in Wales) to make provision in regulations for the whole of the fee which is payable when an applicant appeals under section 177(5) of the 1990 Act against an enforcement notice to be paid to either the local planning authority, the appropriate authority, or both the local planning authority and the appropriate authority. The previous section 303(3)(a) had only allowed the Secretary of State/Welsh Ministers to prescribe that the fee should be paid to her/them and the local planning authority.
272. Section 293A of the 1990 Act (Urgent Crown Development: application) provides for the appropriate authority (that is, the "appropriate authority" as defined in section 293 of the 1990 Act) to make a planning application direct to the Secretary of State (in England) or the Welsh Ministers (in Wales) instead of to the local planning authority. Subsection (4) of the substituted section 303 enables the Secretary of State (in England) and the Welsh Ministers (in Wales) to make provision in regulations for an application under section 293A to be accompanied by a fee payable to the Minister/s to whom the application is made.
273. Subsection (8) provides that regulations made under section 303 should continue to be subject to the affirmative resolution procedure.
Clause 162: Fees for appeals
274. Clause 162 inserts a new section 303ZA into the 1990 Act which allows the Secretary of State or Welsh Ministers to make provision, by way of regulations, for the payment of a fee for appeals made under the 1990 Act and the Listed Buildings Act. The fee is to be payable by the appellant and the regulations may set out, in particular, when the fee should be paid, how the fee should be calculated and by whom, the circumstances under which an appeal fee may be refunded, and the effect of either paying or not paying the fee.
275. Regulations made under the new section 303ZA are subject to the affirmative resolution procedure.
PART 10: COMMUNITY INFRASTRUCTURE LEVY
Clause 163: The levy
276. This clause enables the Secretary of State to establish a Community Infrastructure Levy by regulation and sets out the overall purpose of the levy. The value of land increases when planning permission is granted for development. The aim of the charge is to ensure that costs incurred in providing infrastructure to support the development of an area are partly met by land owners who have benefitted in this way.
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