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Clause 164: Charging authorities
277. This clause provides that the regulations must specify which authorities are empowered to charge the Community Infrastructure Levy including local planning authorities, the Mayor of London and the Secretary of State.
Clause 165: Liability
278. This clause provides that the regulations must specify the basis on which liability to pay CIL is incurred. The clause provides that liability is incurred when development takes place in reliance on planning permission and attached to the land owner at the point when CIL becomes payable. Liability is determined at or by reference to when planning permission first permits the development.
Clause 166: Amount
279. This clause provides that the regulations must specify how the amount of CIL is determined. The regulations may set out procedures on how the amount of CIL is to be determined and methods of calculation. The clause provides appeals on questions of fact related to how the amount of CIL to be paid is calculated.
Clause 167: Application
280. This clause provides that the regulations must require authorities collecting CIL to apply it to funding infrastructure. The regulations may specify what constitutes infrastructure, the areas in which it may be funded and how it may be funded. The regulations may specify procedures for identifying the infrastructure on which CIL may be used and include provision for CIL to be used for reimbursement of expenditure already incurred, loans, guarantees and indemnities, and make provision for the use of CIL should projects no longer require funding. The regulations may make provision for accounting, and monitoring and reporting of CIL and permit money to be applied outside an authority's area, passed to another body or spent by a body.
Clause 168: Collection
281. This clause provides that the regulations shall include provision about the collection of CIL and its repayment, with interest, in cases of overpayment. The regulations may make provision for payments to varying timescales and payments in forms other than money. The regulations may require one authority to collect CIL charged by another and may replicate or apply enactments relating to the collection of tax.
Clause 169: Enforcement
282. This clause provides that the regulations must include provisions on the enforcement of CIL including the consequences of late payment or failure to pay. The regulations may make provision for a range related measures including creation of criminal offences and may replicate or apply enactments relating to the collection of tax.
Clause 170: Secretary of State
283. This clause provides that the regulations may confer powers on the Secretary of State to control the imposition, collection and application of CIL including to set maximum amounts and directing the application of money received through CIL. The regulations may set out the procedures by which the Secretary of State will use such powers and in what circumstances. The clause provides that the Secretary of State may give guidance on any matter connected with CIL to which an authority must have regard.
Clause 171: CIL regulations: general
284. This clause provides that the regulations shall be made by statutory instrument and shall not be made unless a draft has been laid before and approved by resolution of the House of Commons.
Clause 172: Relationship with other powers
285. This clause provides that the regulations may include provision on the use of section 106 of the Town and Country Planning Act 1990 and section 278 of the Highways Act 1980. The clause enables the Secretary of State to give guidance on how these powers are to be exercised to which authorities must have regard.
PART 11: FINAL PROVISIONS
Clause 173: Application to the Crown
286. This clause applies the Bill to the Crown, subject to the exceptions set out in subsections (2) and (3).
Clause 174: Expressions relating to the Crown
287. This clause sets out how the Bill should be interpreted when references are made to the "Crown" e.g. Crown land, Crown interest, Duchy interest, Crown authority.
Clause 175: Enforcement in relation to Crown
288. This clause provides that the offences in the Bill do not apply to the Crown.
Clause 176: Service of notices: general
289. This clause contains provision in respect of how notices and other documents should be served.
Clause 177: Service of documents to persons interested in or occupying premises
290. This clause specifies sets out the conditions which must be satisfied in order to show that a notice, served under provisions of the Bill to a person interested in or occupying premises, has been duly served.
Clause 178: Service of notices on the Crown
291. This clause specifies that any notice required under the Bill to be served on the Crown must be served on the appropriate Crown authority.
Clauses 179 to 189
292. The remainder of Part 11 contains supplementary provisions. Clauses 179 and 180 contain general provision for orders, regulations and directions under the Bill. Clause 179 also sets out the procedure which is to apply in respect of regulations and orders (which are to be made by statutory instrument), and states that power to make them includes power to make different provision for different cases and to make incidental, consequential, supplementary, transitional or transitory provision or savings. Clauses 181 and 182 deal with abbreviations and interpretation. Clause 183 contains modifications to the Bill in relation to Scotland. Clause 184 confers upon the Secretary of State an order making power which may be used to make supplementary and consequential provision. Clauses 185, 187, 188 and 189 make provision as to repeals, extent, commencement and the short title of the Bill.
CONCLUDING SECTIONS
Financial Effects
293. Implementation of the measures in the Bill will mean some costs for the public sector. A one-off transitional cost of setting up the Commission is expected to be approximately £5m, with an annual average running cost forecast at £8m per annum.
294. Estimates suggest the new regime should yield large net savings, in the region of £3.8 - £4.8 billion in total between 2008 and 2030. These savings arise primarily through reducing the existing delays in the construction of nationally significant energy and aviation infrastructure, but also through reduced administrative costs for promoters of NSIPs. More details as to how these savings have been calculated can be found in of the impact assessment of the Bill's provisions (Part A - Nationally Significant Infrastructure Projects), which can be found on the DCLG website, www.communities.gov.uk.
Public Service Manpower
295. We anticipate a reduction in the number of central Government staff engaged on work related to consents for nationally significant infrastructure projects. The Commission will be a non-departmental public body, therefore establishing it will increase public sector manpower. It is envisaged that the Commission will be comprised of 35 Board members and 75 Secretariat staff.
The Regulatory Impact Assessment
296. A regulatory impact assessment (RIA) of the Bill's provisions has been published alongside this Bill, and sets out where there will be an impact on business. Estimates suggest that the annual administrative burden on business will be reduced by approximately £20 million. The RIA is available for Members in the Vote Office and can also be read on the DCLG website at: www.communities.gov.uk.
European Convention on Human Rights
297. Under section 19 of the Human Rights Act 1998, the Minister in charge of a Bill is required to make a statement before Second Reading about the compatibility of the provisions of the Bill with the European Convention on Human Rights. The Right Hon Hazel Blears MP, Secretary of State for Communities and Local Government has made the following statement: "In my view the provisions of the Planning Bill are compatible with the Convention rights."
298. The Bill engages several rights under the Convention, including the right to a fair hearing (Article 6), and right to respect for homes and the protection of property (Article 8 and Article 1 of the First Protocol). The main issues are set out below.
299. It is considered that the proposal for decisions to be made by the Infrastructure Planning Commission in place of ministers is compatible with Article 6. It is not considered that political involvement in decision-making is a necessary element of Article 6.
300. The procedures to be adopted by the Commission in considering applications raise Article 6 issues. Although there will be no automatic right to a public hearing about specified issues, such a hearing will take place where the Commission considers that it is necessary to ensure the proper consideration of an application. The Commission will be a relevant public authority for the purposes of section 6 of the Human Rights Act 1998 and will therefore be required to exercise this function compatibly with Convention rights. If a hearing is held, interested parties will be given the right be heard. An interested party includes those directly affected by the application and anyone who makes a relevant representation on an application. Parties will only be allowed to cross-examine where this is necessary to prevent their case from being prejudiced. It is considered that the procedure for considering applications would be compatible with Article 6.
301. The provisions on legal challenges to the decisions on development consents raise Article 6 issues. The proposed 6 week time limit is similar to that which exists under the Town and Country Planning Act 1990, which has been found by the courts to be compatible with the ECHR, in that it pursues a legitimate aim to ensure legal certainty and finality and to protect the property rights of others. The provisions will also defer, but not exclude, the possibility of challenge until a decision is made. In the circumstances it is considered that the proposals are compatible.
302. A national policy statement identifying a suitable location for a nationally significant infrastructure project might create blight, reducing land values and making land hard to sell. National policy statements will be subject to public consultation and there will be a right to challenge their adoption in the courts (again with a restricted time for challenge). Those adversely affected by the statement will have the benefit of the existing statutory provisions relating to blight. Article 8 and Article 1 of the First Protocol would be engaged but it is considered that any interference would be necessary in the wider public interest and proportionate.
303. An order for development consent may authorise compulsory acquisition of land. In authorising this, the Commission would be required to be satisfied that there was a compelling need in the public interest for the land to be acquired compulsorily. Owners will be able to claim compensation on the same basis as currently applies under the Land Compensation Act 1961, the Compulsory Purchase Act 1965 and case law. Together these constitute the compensation code and this has been held to comply with Article 8 and Article 1. It is considered that any interference with rights under Article 8 or Article 1 as a result of blight would be necessary and proportionate.
304. The proposals to require local planning authorities to make arrangements for certain planning applications to be determined by officers, with a review by members but no appeal to the Secretary of State raises Article 6 issues. It is considered that, in the light of the Alconbury and Begum cases, the right of review coupled with the power of the High Court to review the legality of the decision is sufficient to satisfy Article 6.
305. The Bill makes provision for the removal of the right to insist on an oral hearing at a planning appeal and instead empowers the Secretary of State to determine the most appropriate appeal method by applying approved criteria. The courts have held that a fair hearing does not necessarily require an oral hearing - it will depend on the circumstances, including the nature of the claimant's interest, the seriousness of the matter being decided and the nature of any matters in dispute. It is considered that the use of published criteria together with review by the High Court is sufficient to satisfy Article 6.
306. The Bill also provides for the removal of the right to compensation where notice is given of the withdrawal of planning permission granted by a development order (clause 155). Section 108(1) of the 1990 Act currently provides for compensation to be payable if planning permission granted by development order is withdrawn, and within 12 months an application for planning permission is made which is refused or granted subject to conditions by the LPA. These clauses amend the compensation provisions of the 1990 Act so as to provide an optional route whereby local planning authorities can elect to provide a period of 12 months' notice before a change to permitted development is brought into effect, during which time development can go ahead without the need to apply for planning permission. No compensation would be payable where the 12 months' notice period is given. Protection for the rights of the individual is provided by the 12 months' notice period before any restrictive change to permitted development comes into effect, during which time development can go ahead without the need to apply for planning permission. It is considered that this proposal is compatible with Article 1 of the First Protocol.
307. The Bill also includes provisions on fees for application and appeals, rights of entry, offences and a Community Infrastructure Levy. Although these raise ECHR issues, it is considered that they are all serve a legitimate aim and are compatible with the ECHR.
Sewel Convention
308. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
Commencement Date
309. Clause 188 makes provision about commencement. In general the provisions of the Bill will be brought into force by order made by the Secretary of State. Certain provisions of the Bill will come into force on the day on which the Act is passed; these are set out in subsection (1) of clause 188. Certain provisions will be brought into force in relation to Wales by order made by the Welsh Ministers; these are set out in subsections (3) and (4) of clause 188.
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