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 4 — Examination of applications under Chapter 2 or 3
49

91
Hearings about specific issues
(1)
Subsections (2) and (3) apply where the Examining authority decides that it is
necessary for the Examining authority’s examination of the application to
include the consideration of oral representations about a particular issue made
at a hearing in order to ensure—
5
(a)
adequate examination of the issue, or
(b)
that an interested party has a fair chance to put the party’s case.
(2)
The Examining authority must cause a hearing to be held for the purpose of
receiving oral representations about the issue.
(3)
At the hearing, each interested party is entitled (subject to the Examining
10
authority’s powers of control over the conduct of the hearing) to make oral
representations about the issue.
(4)
Where the Examining authority is a Panel acting under Chapter 2, any two or
more hearings under subsection (2) may be held concurrently.
92
Compulsory acquisition hearings
15
(1)
This section applies where the application includes a request for an order
granting development consent to authorise compulsory acquisition of land or
of an interest in or right over land (a “compulsory acquisition request”).
(2)
The Examining authority must fix, and cause each affected person to be
informed of, the deadline by which an affected person must notify the
20
Commission that the person wishes a compulsory acquisition hearing to be
held.
(3)
If the Commission receives notification from at least one affected person before
the deadline, the Examining authority must cause a compulsory acquisition
hearing to be held.
25
(4)
At a compulsory acquisition hearing, the following are entitled (subject to the
Examining authority’s powers of control over the conduct of the hearing) to
make oral representations about the compulsory acquisition request—
(a)
the applicant;
(b)
each affected person.
30
(5)
A person is an “affected person” for the purposes of this section if the person’s
name has been given to the Commission in a notice under section 59.
93
Open-floor hearings
(1)
The Examining authority must fix, and cause the interested parties to be
informed of, the deadline by which an interested party must notify the
35
Commission of the party’s wish to be heard at an open-floor hearing.
(2)
If the Commission receives notification from at least one interested party
before the deadline, the Examining authority must cause an open-floor hearing
to be held.
(3)
At an open-floor hearing, each interested party is entitled (subject to the
40
Examining authority’s powers of control over the conduct of the hearing) to
make oral representations about the application.

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 4 — Examination of applications under Chapter 2 or 3
50

94
Hearings: general provisions
(1)
The following provisions of this section apply—
(a)
to a hearing under section 91(2),
(b)
to a compulsory acquisition hearing (see section 92), and
(c)
to an open-floor hearing (see section 93).
5
(2)
The hearing—
(a)
must be in public, and
(b)
must be presided over by one or more of the members of the Panel or
(as the case may be) the single Commissioner.
(3)
It is for the Examining authority to decide how the hearing is to be conducted.
10
(4)
In particular, it is for the Examining authority to decide—
(a)
whether a person making oral representations at the hearing may be
questioned at the hearing by another person and, if so, the matters to
which the questioning may relate;
(b)
the amount of time to be allowed at the hearing—
15
(i)
for the making of a person’s representations (including
representations made in exercise of an entitlement under
section 91(3), 92(4) or 93(3)), or
(ii)
for any questioning by another person.
(5)
The Examining authority’s powers under subsections (3) and (4) are subject
20
to—
(a)
subsection (2), and
(b)
any rules made under section 97.
(6)
Although the Examining authority’s powers under subsections (3) and (4) may
be exercised for the purpose of controlling exercise of an entitlement under
25
section 91(3), 92(4) or 93(3), those powers may not be exercised so as to deprive
the person entitled of all benefit of the entitlement.
(7)
In making decisions under subsection (4)(a), the Examining authority must
apply the principle that any oral questioning of a person making
representations at a hearing (whether the applicant or any other person)
30
should be undertaken by the Examining authority except where the Examining
authority thinks that oral questioning by another person is necessary in order
to ensure—
(a)
adequate testing of any representations, or
(b)
that a person has a fair chance to put the person’s case.
35
(8)
The Examining authority may refuse to allow representations to be made at the
hearing (including representations made in exercise of an entitlement under
section 91(3), 92(4) or 93(3)) if the Examining authority considers that the
representations—
(a)
are irrelevant, vexatious or frivolous,
40
(b)
relate to the merits of policy set out in a national policy statement,
(c)
repeat other representations already made (in any form and by any
person), or
(d)
relate to compensation for compulsory acquisition of land or of an
interest in or right over land.
45

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 4 — Examination of applications under Chapter 2 or 3
51

95
Hearings: disruption, supervision and costs
(1)
Where an interested party or any other person behaves in a disruptive manner
at a hearing, the Examining authority may decide to do any one or more of the
following—
(a)
exclude the person from all, or part, of the remainder of the hearing;
5
(b)
allow the person to continue to attend the hearing only if the person
complies with conditions specified by the Examining authority;
(c)
exclude the person from other hearings;
(d)
direct that the person is allowed to attend other hearings only if the
person complies with conditions specified by the Examining authority.
10
(2)
In this section “hearing” means—
(a)
a preliminary meeting under section 88,
(b)
a hearing under section 91(2),
(c)
a compulsory acquisition hearing (see section 92),
(d)
an open-floor hearing (see section 93),
15
(e)
any other meeting or hearing that the Examining authority causes to be
held for the purposes of the Examining authority’s examination of the
application, or
(f)
a site visit.
(3)
The Examining authority’s examination of the application is a statutory
20
inquiry for the purposes of Schedule 7 to the Tribunals, Courts and
Enforcement Act 2007 (c. 15) (functions etc. of Administrative Justice and
Tribunals Council).
(4)
Subsection (5) of section 250 of the Local Government Act 1972 (c. 70)
(provisions about costs applying where Minister causes a local inquiry to be
25
held) applies in relation to the Examining authority’s examination of the
application as it applies in relation to an inquiry under that section, but with
references to the Minister causing the inquiry to be held being read as
references to the Examining authority.

This is subject to subsection (5) of this section.
30
(5)
Subsections (6) to (8) of section 210 of the Local Government (Scotland) Act
1973 (c. 65) (provisions about expenses applying where Minister causes a local
inquiry to be held) apply in relation to the Examining authority’s examination
of the application in so far as relating to a hearing held in Scotland as they
apply in relation to an inquiry under that section, but with references to the
35
Minister causing the inquiry to be held being read as references to the
Examining authority.
96
Representations not made orally may be made in writing
(1)
Subsection (2) applies where—
(a)
a person asks the Examining authority to be allowed to make oral
40
representations about the application at a hearing,
(b)
the person does not (for whatever reason) make the representations
orally at a hearing,
(c)
written representations from the person are received by the
Commission before the Examining authority completes the Examining
45
authority’s examination of the application, and

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 4 — Examination of applications under Chapter 2 or 3
52

(d)
the written representations state that they are ones that the person
asked to be allowed to, but did not, make orally at a hearing.
(2)
The Examining authority must consider the written representations as part of
the Examining authority’s examination of the application, subject to section
87(3).
5
97
Procedure rules
(1)
The Lord Chancellor or (if subsection (2) applies) the Secretary of State, after
consultation with the Administrative Justice and Tribunals Council, may make
rules regulating the procedure to be followed in connection with the
Examining authority’s examination of the application.
10
(2)
This subsection applies if the development to which the application relates (or
part of the development) is the construction (other than by a gas transporter)
of an oil or gas cross-country pipe-line—
(a)
one end of which is in England or Wales, and
(b)
the other end of which is in Scotland.
15
(3)
Rules under subsection (1) may make provision for or in connection with
authorising the Examining authority, alone or with others, to enter onto land,
including land owned or occupied otherwise than by the applicant, for the
purpose of inspecting the land as part of the Examining authority’s
examination of the application.
20
(4)
Rules under subsection (1) may regulate procedure in connection with matters
preparatory to the Examining authority’s examination of the application, and
in connection with matters subsequent to the examination, as well as in
connection with the conduct of the examination.
(5)
Power under this section to make rules includes power to make different
25
provision for different purposes.
(6)
Power under this section to make rules is exercisable by statutory instrument.
(7)
A statutory instrument containing rules under this section is subject to
annulment pursuant to a resolution of either House of Parliament.
98
Timetable for examining, and reporting on, application
30
(1)
The Examining authority is under a duty to complete the Examining
authority’s examination of the application by the end of the period of 6 months
beginning with the day after the start day.
(2)
The start day is the day on which the meeting required by section 88 is held or,
if that meeting is held on two or more days, the later or latest of those days.
35
(3)
In a case where the Examining authority is required to make a report to the
Secretary of State under section 74(2)(b) or 83(2)(b), the Examining authority is
under a duty to make its report by the end of the period of 3 months beginning
with the day after the deadline for completion of its examination of the
application.
40
(4)
The person appointed to chair the Commission may set a date for a deadline
under this section that is later than the date for the time being set.
(5)
The power under subsection (4) may be exercised—

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 4 — Examination of applications under Chapter 2 or 3
53

(a)
more than once in relation to the same deadline;
(b)
after the date for the time being set for the deadline.
(6)
Where the power under subsection (4) is exercised—
(a)
the person exercising the power must notify the Secretary of State of
what has been done and of the reasons for doing it, and
5
(b)
the Commission’s report under paragraph 17 of Schedule 1 for the
financial year in which the power is exercised must mention and
explain what has been done.
99
Completion of Examining authority’s examination of application
When the Examining authority has completed its examination of the
10
application, it must inform each of the interested parties of that fact.
100
Assessors
(1)
The person appointed to chair the Commission (“the chair”) may, at the request
of the Examining authority, appoint a person to act as an assessor to assist the
Examining authority in the Examining authority’s examination of the
15
application.
(2)
A person may be appointed as an assessor only if it appears to the chair that
the person has expertise that makes the person a suitable person to provide
assistance to the Examining authority.
101
Legal advice and assistance
20
(1)
The person appointed to chair the Commission may, at the request of the
Examining authority, appoint a barrister, solicitor or advocate to provide legal
advice and assistance to the Examining authority in connection with its
examination of the application.
(2)
The assistance that may be given by a person appointed under subsection (1)
25
includes carrying out on behalf of the Examining authority any oral
questioning of a person making representations at a hearing.
102
Interpretation of Chapter 4: “interested party” and other expressions
(1)
For the purposes of this Chapter, a person is an “interested party” if—
(a)
the person is the applicant,
30
(b)
the person is a statutory party,
(c)
the person is a relevant local authority,
(d)
the person is the Greater London Authority and the land is in Greater
London, or
(e)
the person has made a relevant representation.
35
(2)
In this Chapter “representation” includes evidence, and references to the
making of a representation include the giving of evidence.
(3)
In subsection (1) “statutory party” means a person specified in, or of a
description specified in, regulations made by the Secretary of State.
(4)
A representation is a relevant representation for the purposes of subsection (1)
40
to the extent that—

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 5 — Decisions on applications
54

(a)
it is a representation about the application,
(b)
it is made to the Commission in the prescribed form and manner,
(c)
it is received by the Commission no later than the deadline that applies
under section 56 to the person making it,
(d)
it contains material of a prescribed description, and
5
(e)
it does not contain—
(i)
material about compensation for compulsory acquisition of
land or of an interest in or right over land,
(ii)
material about the merits of policy set out in a national policy
statement, or
10
(iii)
material that is vexatious or frivolous.
(5)
In subsection (1) “relevant local authority” means a local authority within
subsection (6) or (7).
(6)
A local authority is within this subsection if the land is in the authority’s area.
(7)
A local authority (“A”) is within this subsection if—
15
(a)
the land is in the area of another local authority (“B”), and
(b)
any part of the boundary of A’s area is also a part of the boundary of
B’s area.
(8)
In subsections (5) to (7) “local authority” means—
(a)
a county council, or district council, in England;
20
(b)
a London borough council;
(c)
the Common Council of the City of London;
(d)
the Council of the Isles of Scilly;
(e)
a county council, or county borough council, in Wales;
(f)
a council constituted under section 2 of the Local Government etc.
25
(Scotland) Act 1994 (c. 39);
(g)
a National Park authority;
(h)
the Broads authority.
(9)
In this section “the land” means the land to which the application relates or any
part of that land.
30
Chapter 5
Decisions on applications
103
Cases where Secretary of State is, and meaning of, decision-maker
(1)
The Secretary of State has the function of deciding an application for an order
granting development consent where—
35
(a)
in a case within section 74(2), the Secretary of State receives the Panel’s
report on the application, or
(b)
in a case within section 83(2)(b), the Secretary of State receives the
single Commissioner’s report on the application.
(2)
In this Act “decision-maker” in relation to an application for an order granting
40
development consent—
(a)
means the Panel that has the function of deciding the application, or

Planning Bill
Part 6 — Deciding applications for orders granting development consent
Chapter 5 — Decisions on applications
55

(b)
where the Council or the Secretary of State has the function of deciding
the application, means the Council or (as the case may be) the Secretary
of State.
104
Decisions of Panel and Council
(1)
This section applies in relation to an application for an order granting
5
development consent if the decision-maker is a Panel or the Council.
(2)
In deciding the application the Panel or Council must have regard to—
(a)
any national policy statement which has effect in relation to
development of the description to which the application relates (a
“relevant national policy statement”),
10
(b)
any local impact report (within the meaning given by section 60(3))
submitted to the Commission before the deadline specified in a notice
under section 60(2),
(c)
any matters prescribed in relation to development of the description to
which the application relates, and
15
(d)
any other matters which the Panel or Council thinks are both important
and relevant to its decision.
(3)
The Panel or Council must decide the application in accordance with any
relevant national policy statement, except to the extent that one or more of the
following subsections applies.
20
(4)
This subsection applies if the Panel or Council is satisfied that deciding the
application in accordance with any relevant national policy statement would
lead to the United Kingdom being in breach of any of its international
obligations.
(5)
This subsection applies if the Panel or Council is satisfied that deciding the
25
application in accordance with any relevant national policy statement would
lead to the Panel or Council, or the Commission, being in breach of any duty
imposed on it by or under any enactment.
(6)
This subsection applies if the Panel or Council is satisfied that deciding the
application in accordance with any relevant national policy statement would
30
be unlawful by virtue of any enactment.
(7)
This subsection applies if the Panel or Council is satisfied that the adverse
impact of the proposed development would outweigh its benefits.
(8)
This subsection applies if the Panel or Council is satisfied that any condition
prescribed for deciding an application otherwise than in accordance with a
35
national policy statement is met.
105
Decisions of Secretary of State
(1)
This section applies in relation to an application for an order granting
development consent if the decision-maker is the Secretary of State.
(2)
In deciding the application the Secretary of State must have regard to—
40
(a)
any local impact report (within the meaning given by section 60(3))
submitted to the Commission before the deadline specified in a notice
under section 60(2),