Planning Bill

House of Commons

Session 2007 - 08
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Planning Bill

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 9 — Legal challenges
55

Chapter 9
Legal challenges
108
Legal challenges relating to applications for orders granting development
consent
(1)
A court may entertain proceedings for questioning an order granting
5
development consent only if—
(a)
the proceedings are brought by a claim for judicial review, and
(b)
the claim form is filed during the period of 6 weeks beginning with—
(i)
the day on which the order is published, or
(ii)
if later, the day on which the statement of reasons for making
10
the order is published.
(2)
A court may entertain proceedings for questioning a refusal of development
consent only if—
(a)
the proceedings are brought by a claim for judicial review, and
(b)
the claim form is filed during the period of 6 weeks beginning with the
15
day on which the statement of reasons for the refusal is published.
(3)
A court may entertain proceedings for questioning a decision of the
Commission under section 52 not to accept an application for an order granting
development consent only if—
(a)
the proceedings are brought by a claim for judicial review, and
20
(b)
the claim form is filed during the period of 6 weeks beginning with the
day on which the Commission notifies the applicant as required by
subsection (7) of that section.
(4)
A court may entertain proceedings for questioning anything else done, or
omitted to be done, by the Secretary of State or the Commission in relation to
25
an application for an order granting development consent only if—
(a)
the proceedings are brought by a claim for judicial review, and
(b)
the claim form is filed during the period of 6 weeks beginning with the
relevant day.
(5)
“The relevant day”, in relation to an application for an order granting
30
development consent, means the day on which—
(a)
the application is withdrawn,
(b)
the order granting development consent is published or (if later) the
statement of reasons for making the order is published, or
(c)
the statement of reasons for the refusal of development consent is
35
published.
(6)
Subsections (4) and (5) do not apply in relation to—
(a)
a failure to decide an application for an order granting development
consent, or
(b)
anything which delays (or is likely to delay) the decision on such an
40
application.

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
56

Part 7
Development consent orders
Chapter 1
Content of development consent orders
General
5
109
What may be included in order granting development consent
(1)
An order granting development consent may impose requirements in
connection with the development for which consent is granted.
(2)
The requirements may in particular include requirements corresponding to
conditions which could have been imposed on the grant of any permission,
10
consent or authorisation, or the giving of any notice, which (but for section
31(1)) would have been required for the development.
(3)
An order granting development consent may make provision relating to, or to
matters ancillary to, the development for which consent is granted.
(4)
The order may in particular include provision—
15
(a)
authorising the acquisition of land, compulsorily or by agreement;
(b)
authorising the creation, suspension, overriding or extinguishment of
rights over land (including rights of navigation over water),
compulsorily or by agreement;
(c)
authorising the abrogation or modification of agreements relating to
20
land;
(d)
authorising the carrying out of specified excavation, mining, quarrying
or boring operations in a specified area;
(e)
authorising the operation of a generating station;
(f)
authorising electric lines to be kept installed above ground;
25
(g)
authorising the sale, exchange or appropriation of Green Belt land;
(h)
for the freeing of land from any restriction imposed on it by or under
the Green Belt (London and Home Counties) Act 1938 (c. xciii), or by a
covenant or other agreement entered into for the purposes of that Act;
(i)
protecting the property or interests of any person;
30
(j)
imposing or excluding obligations or liability in respect of acts or
omissions;
(k)
authorising the carrying out of surveys or the taking of soil samples;
(l)
authorising the cutting down, uprooting, topping or lopping of trees or
shrubs or cutting back their roots;
35
(m)
authorising the removal, disposal or re-siting of apparatus;
(n)
authorising the diversion of navigable or non-navigable watercourses;
(o)
authorising the stopping up or diversion of highways;
(p)
authorising the charging of tolls in relation to a proposed highway;
(q)
designating a proposed highway as a trunk road or special road;
40
(r)
specifying the classes of traffic authorised to use a proposed highway;
(s)
authorising the appropriation of a highway for which the person
proposing to construct a highway is the highway authority;

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Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
57

(t)
authorising the transfer to the person proposing to construct a highway
of a highway for which that person is not the highway authority;
(u)
specifying the highway authority for a proposed highway;
(v)
authorising the discharge of water into inland waters or underground
strata;
5
(w)
for the payment of contributions;
(x)
for the payment of compensation;
(y)
for the submission of disputes to arbitration;
(z)
for the alteration of borrowing limits.
(5)
Subsections (3) and (4) are subject to the following provisions of this Chapter.
10
(6)
An order granting development consent may—
(a)
apply, modify or exclude a statutory provision which relates to any
matter for which provision may be made in the order;
(b)
make such amendments, repeals or revocations of statutory provisions
of local application as appear to the decision-maker to be necessary or
15
expedient in consequence of a provision of the order or in connection
with the order;
(c)
include any provision that appears to the decision-maker to be
necessary or expedient for giving full effect to any other provision of
the order;
20
(d)
include incidental, consequential, supplementary, transitional or
transitory provisions and savings.
(7)
In subsection (6) “statutory provision” means a provision of an Act or of an
instrument made under an Act.
(8)
Subsection (6) is subject to sections 110 and 113.
25
(9)
The reference in subsection (4)(b) to rights over land includes a reference to
rights to do, or to place and maintain, anything in, on or under land or in the
air-space above its surface.
110
Exercise of powers in relation to legislation
(1)
This section applies if a Panel, or the Council, proposes to make an order
30
granting development consent which includes provision made in exercise of
any of the powers conferred by section 109(6)(a) and (b) (“the legislation
powers”).
(2)
Before making the order, the Panel or Council must send a draft of it to the
Secretary of State.
35
(3)
If the Secretary of State thinks that any provision which the Panel or Council
proposes to include in the order in exercise of the legislation powers would
contravene Community law or any of the Convention rights, the Secretary of
State may give a direction requiring the Panel or Council to make specified
changes to the draft order.
40
(4)
The changes that may be specified in a direction under subsection (3) are
limited to those that the Secretary of State thinks are required in order to
prevent the contravention from arising.

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Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
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(5)
The power of the Secretary of State to give a direction under subsection (3) is
not exercisable after the end of the period of 28 days beginning with the day on
which the Secretary of State receives the draft order.
(6)
In this section—
“Community law” means—
5
(a)
all the rights, powers, liabilities, obligations and restrictions
from time to time created or arising by or under the Community
Treaties, and
(b)
all the remedies and procedures from time to time provided for
by or under the Community Treaties;
10
“the Convention rights” has the same meaning as in the Human Rights
Act 1998 (c. 42).
Compulsory acquisition
111
Purpose for which compulsory acquisition may be authorised
(1)
An order granting development consent may include provision authorising
15
the compulsory acquisition of land only if the decision-maker is satisfied that
the conditions in subsections (2) and (3) are met.
(2)
The condition is that the land—
(a)
is required for the development to which the development consent
relates,
20
(b)
is required to facilitate or is incidental to that development, or
(c)
is replacement land which is to be given in exchange for the order land
under section 118 or 119.
(3)
The condition is that there is a compelling case in the public interest for the
land to be acquired compulsorily.
25
112
Guidance about authorisation of compulsory acquisition
(1)
The Secretary of State may issue guidance about the making of an order
granting development consent which includes provision authorising the
compulsory acquisition of land.
(2)
If a Panel or the Council proposes to make such an order, it must have regard
30
to any guidance issued under subsection (1).
113
Compensation for compulsory acquisition
(1)
This section applies in relation to an order granting development consent
which includes provision authorising the compulsory acquisition of land.
(2)
The order may not include provision the effect of which is to modify the
35
application of a compensation provision, except to the extent necessary to
apply the provision to the compulsory acquisition of land authorised by the
order.
(3)
The order may not include provision the effect of which is to exclude the
application of a compensation provision.
40

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Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
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(4)
A compensation provision is a provision of or made under an Act which relates
to compensation for the compulsory acquisition of land.
114
Statutory undertakers’ land
(1)
This section applies in relation to land (“statutory undertakers’ land”) if—
(a)
the land has been acquired by statutory undertakers for the purposes of
5
their undertaking,
(b)
a representation has been made about an application for an order
granting development consent before the completion of the
examination of the application, and the representation has not been
withdrawn, and
10
(c)
as a result of the representation the decision-maker is satisfied that—
(i)
the land is used for the purposes of carrying on the statutory
undertakers’ undertaking, or
(ii)
an interest in the land is held for those purposes.
(2)
An order granting development consent may include provision authorising
15
the compulsory acquisition of statutory undertakers’ land only to the extent
that—
(a)
in a case where the Secretary of State is the decision-maker, the
Secretary of State is satisfied of the matters set out in subsection (3);
(b)
in a case where a Panel or the Council is the decision-maker, the
20
Secretary of State has notified the Commission that the Secretary of
State is so satisfied.
(3)
The matters are that the nature and situation of the land are such that—
(a)
it can be purchased and not replaced without serious detriment to the
carrying on of the undertaking, or
25
(b)
if purchased it can be replaced by other land belonging to, or available
for acquisition by, the undertakers without serious detriment to the
carrying on of the undertaking.
(4)
An order granting development consent may include provision authorising
the compulsory acquisition of a relevant right over statutory undertakers’ land
30
by the creation of a new right over land only to the extent that—
(a)
in a case where the Secretary of State is the decision-maker, the
Secretary of State is satisfied of the matters set out in subsection (5);
(b)
in a case where a Panel or the Council is the decision-maker, the
Secretary of State has notified the Commission that the Secretary of
35
State is so satisfied.
(5)
The matters are that the nature and situation of the land are such that—
(a)
the right can be purchased without serious detriment to the carrying on
of the undertaking, or
(b)
any detriment to the carrying on of the undertaking, in consequence of
40
the acquisition of the right, can be made good by the undertakers by the
use of other land belonging to or available for acquisition by them.
(6)
In this section—
“relevant right” means a right to which Schedule 3 to the Acquisition of
Land Act 1981 (c. 67) applies;
45
“statutory undertakers” has the meaning given by section 8 of that Act
and also includes the undertakers which are statutory undertakers for

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
60

the purposes of section 16(1) and (2) of that Act (see section 16(3) of that
Act).
(7)
In the application of this section to a statutory undertaker which is a health
service body (as defined in section 60(7) of the National Health Service and
Community Care Act 1990 (c. 19)), references to land acquired or available for
5
acquisition by the statutory undertakers are to be construed as references to
land acquired or available for acquisition by the Secretary of State for use or
occupation by the body.
115
Local authority land and statutory undertakers’ land: general
(1)
This section applies to land which—
10
(a)
is the property of a local authority, or
(b)
has been acquired by statutory undertakers (other than a local
authority) for the purposes of their undertaking.
(2)
An order granting development consent is subject to special parliamentary
procedure, to the extent that the order authorises—
15
(a)
the compulsory acquisition of land to which this section applies, or
(b)
the compulsory acquisition of a relevant right over land to which this
section applies,

if the condition in subsection (3) is met.
(3)
The condition is that—
20
(a)
a representation has been made by the local authority or (as the case
may be) the statutory undertakers about an application for an order
granting development consent before the completion of the
examination of the application, and
(b)
the representation has not been withdrawn.
25
(4)
Subsection (2) is subject to section 116.
(5)
In this section—
“local authority” has the meaning given by section 7(1) of the Acquisition
of Land Act 1981 (c. 67);
“relevant right” means a right to which Schedule 3 to that Act applies;
30
“statutory undertakers” has the meaning given by section 8 of that Act
and also includes the undertakers which are statutory undertakers for
the purposes of section 16(1) and (2) of that Act (see section 16(3) of that
Act).
(6)
In the application of this section to a statutory undertaker which is a health
35
service body (as defined in section 60(7) of the National Health Service and
Community Care Act 1990), the reference to land acquired by statutory
undertakers is to be construed as a reference to land acquired by the Secretary
of State for use or occupation by the body.
116
Local authority and statutory undertakers’ land: acquisition by public body
40
(1)
Section 115(2) does not apply to the compulsory acquisition of an interest in
land if the person acquiring the interest is any of the following—
(a)
a local authority;
(b)
a National Park authority;
(c)
an urban development corporation;
45

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Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
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(d)
a Welsh planning board;
(e)
a statutory undertaker;
(f)
a Minister of the Crown.
(2)
In this section—
“local authority” has the meaning given by section 17(4) of the Acquisition
5
of Land Act 1981 (c. 67);
“statutory undertaker” has the meaning given by section 8 of that Act and
also includes the authorities, bodies and undertakers which are
statutory undertakers for the purposes of section 17(3) of that Act (see
section 17(4) of that Act);
10
“Welsh planning board” means a board constituted under section 2(1B) of
TCPA 1990.
117
National Trust land
(1)
This section applies to land belonging to the National Trust which is held by
the Trust inalienably.
15
(2)
An order granting development consent is subject to special parliamentary
procedure, to the extent that the order authorises—
(a)
the compulsory acquisition of land to which this section applies, or
(b)
the compulsory acquisition of a relevant right over land to which this
section applies,
20

if the condition in subsection (3) is met.
(3)
The condition is that—
(a)
a representation has been made by the National Trust about an
application for an order granting development consent before the
completion of the examination of the application, and
25
(b)
the representation has not been withdrawn.
(4)
In this section “held inalienably”, in relation to land belonging to the National
Trust, means that the land is inalienable under section 21 of the National Trust
Act 1907 (c. cxxxvi) or section 8 of the National Trust Act 1939 (c. lxxxvi).
(5)
In this section—
30
“the National Trust” means the National Trust for Places of Historic
Interest or Natural Beauty incorporated by the National Trust Act 1907
(c. cxxxvi);
“relevant right” means a right to which Schedule 3 to the Acquisition of
Land Act 1981 applies.
35
118
Commons, open spaces etc: compulsory acquisition of land
(1)
This section applies to any land forming part of a common, open space or fuel
or field garden allotment.
(2)
An order granting development consent is subject to special parliamentary
procedure, to the extent that the order authorises the compulsory acquisition
40
of land to which this section applies, unless—
(a)
in a case where the Secretary of State is the decision-maker, the
Secretary of State is satisfied that one of subsections (3) to (5) applies;