Planning Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Planning Bill

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
75

136
Public rights of way
(1)
An order granting development consent may extinguish a public right of way
over land only if the decision-maker is satisfied that—
(a)
an alternative right of way has been or will be provided, or
(b)
the provision of an alternative right of way is not required.
5
(2)
The following provisions of this section apply if—
(a)
an order granting development consent makes provision for the
acquisition of land, compulsorily or by agreement,
(b)
the order extinguishes a public right of way over the land, and
(c)
the right of way is not a right enjoyable by vehicular traffic.
10
(3)
The order granting development consent may not provide for the right of way
to be extinguished from a date which is earlier than the date on which the order
is published.
(4)
Subsection (5) applies if—
(a)
the order granting development consent extinguishes the right of way
15
from a date (“the extinguishment date”) which is earlier than the date
on which the acquisition of the land is completed, and
(b)
at any time after the extinguishment date it appears to the appropriate
authority that the proposal to acquire the land has been abandoned.
(5)
The appropriate authority must by order direct that the right is to revive.
20
(6)
“The appropriate authority” is—
(a)
if the order granting development consent was made by a Panel or the
Council, the Commission;
(b)
in any other case, the Secretary of State.
(7)
Nothing in subsection (5) prevents the making of a further order extinguishing
25
the right of way.
137
Public rights of way: statutory undertakers’ apparatus etc.
(1)
The following provisions of this section apply if—
(a)
an order granting development consent makes provision for the
acquisition of land, compulsorily or by agreement,
30
(b)
a public right of way exists over the land,
(c)
the right of way is not a right enjoyable by vehicular traffic, and
(d)
the right of way is over land falling within subsection (2).
(2)
Land falls within this subsection if it is land on, over or under which there is—
(a)
apparatus belonging to statutory undertakers, or
35
(b)
electronic communications apparatus kept installed for the purposes of
an electronic communications code network.
(3)
The order granting development consent may include provision for the right
of way to be extinguished only if the undertakers or the operator of the
network (as the case may be) consent to the inclusion of the provision.
40
(4)
The consent referred to in subsection (3)—
(a)
may be given subject to the condition that there are included in the
order such provisions for the protection of the undertakers or the
operator (as the case may be) as they may reasonably require, and

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
76

(b)
must not be unreasonably withheld.
(5)
Any question arising under subsection (4) whether any requirement or refusal
is reasonable is to be determined by the Secretary of State.
(6)
The question of which Secretary of State should make a determination under
subsection (5) is to be determined by the Treasury, if it arises.
5
(7)
In this section and section 138 “statutory undertakers” means persons who are,
or are deemed to be, statutory undertakers for the purposes of any provision
of Part 11 of TCPA 1990.
(8)
In this section and section 138 the following terms have the meanings given in
paragraph 1(1) of Schedule 17 to the Communications Act 2003 (c. 21)—
10
“electronic communications apparatus”;
“electronic communications code”;
“electronic communications code network”;
“operator”.
138
Extinguishment of rights, and removal of apparatus, of statutory undertakers
15
etc.
(1)
This section applies if an order granting development consent authorises the
acquisition of land (compulsorily or by agreement) and—
(a)
there subsists over the land a relevant right, or
(b)
there is on, under or over the land relevant apparatus.
20
(2)
“Relevant right” means a right of way, or a right of laying down, erecting,
continuing or maintaining apparatus on, under or over the land, which—
(a)
is vested in or belongs to statutory undertakers for the purpose of the
carrying on of their undertaking, or
(b)
is conferred by or in accordance with the electronic communications
25
code on the operator of an electronic communications code network.
(3)
“Relevant apparatus” means—
(a)
apparatus vested in or belonging to statutory undertakers for the
purpose of the carrying on of their undertaking, or
(b)
electronic communications apparatus kept installed for the purposes of
30
an electronic communications code network.
(4)
The order may include provision for the extinguishment of the relevant right,
or the removal of the relevant apparatus, only if—
(a)
the decision-maker is satisfied that the extinguishment or removal is
necessary for the purpose of carrying out the development to which the
35
order relates, and
(b)
in a case within subsection (5), the Secretary of State has consented to
the inclusion of the provision.
(5)
A case is within this subsection if a representation has been made about the
application for the order granting development consent before the completion
40
of the examination of the application—
(a)
in a case falling within subsection (2)(a) or (3)(a), by the statutory
undertakers;
(b)
in a case falling within subsection (2)(b) or (3)(b), by the operator of the
electronic communications code network,
45

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
77


and the representation has not been withdrawn.
(6)
The question of which Secretary of State should give consent under subsection
(4)(b) is to be determined by the Treasury, if it arises.
139
Operation of generating stations
An order granting development consent may include provision authorising
5
the operation of a generating station only if the development to which the
order relates is or includes the construction or extension of the generating
station.
140
Keeping electric lines installed above ground
An order granting development consent may include provision authorising an
10
electric line to be kept installed above ground only if the development to which
the order relates is or includes the installation of the line above ground.
141
Use of underground gas storage facilities
An order granting development consent may include provision authorising
the use of underground gas storage facilities only if the development to which
15
the order relates is or includes development within section 17(2), (3) or (5).
142
Diversion of watercourses
(1)
An order granting development consent may include provision authorising
the diversion of any part of a navigable watercourse only if the condition in
subsection (2) is met.
20
(2)
The new length of watercourse must be navigable in a reasonably convenient
manner by vessels of a kind that are accustomed to using the part of the
watercourse which is to be diverted.
(3)
In deciding whether the condition in subsection (2) is met, the effect of any
bridge or tunnel must be ignored if the construction of the bridge or tunnel is
25
part of the development for which consent is granted by the order granting
development consent.
(4)
If an order granting development consent includes provision authorising the
diversion of any part of a navigable watercourse, the order is also to be taken
to authorise the diversion of any tow path or other way adjacent to that part.
30
143
Highways
(1)
An order granting development consent may include provision authorising
the charging of tolls in relation to a highway only if a request to that effect has
been included in the application for the order.
(2)
If an order granting development consent includes provision authorising the
35
charging of tolls in relation to a highway, the order is treated as a toll order for
the purposes of sections 7 to 18 of the New Roads and Street Works Act 1991
(c. 22).
(3)
An order granting development consent may include provision authorising—
(a)
the appropriation of a highway by a person, or
40

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
78

(b)
the transfer of a highway to a person,

only if the appropriation or transfer is connected with the construction or
improvement by the person of a highway which is designated by the order as
a special road.
144
Harbours
5
(1)
An order granting development consent may include provision for the creation
of a harbour authority only if—
(a)
the development to which the order relates is or includes the
construction or alteration of harbour facilities, and
(b)
the creation of a harbour authority is necessary or expedient for the
10
purposes of the development.
(2)
An order granting development consent may include provision changing the
powers or duties of a harbour authority only if—
(a)
the development to which the order relates is or includes the
construction or alteration of harbour facilities, and
15
(b)
the authority has requested the inclusion of the provision or has
consented in writing to its inclusion.
(3)
An order granting development consent may include provision authorising
the transfer of property, rights or liabilities from one harbour authority to
another only if—
20
(a)
the development to which the order relates is or includes the
construction or alteration of harbour facilities, and
(b)
the order makes provision for the payment of compensation of an
amount—
(i)
determined in accordance with the order, or
25
(ii)
agreed between the parties to the transfer.
(4)
An order granting development consent which includes provision for the
creation of a harbour authority, or changing the powers or duties of a harbour
authority, may also make other provision in relation to the authority.

This is subject to subsection (6).
30
(5)
Subject to subsection (6), the provision which may be included in relation to a
harbour authority includes in particular—
(a)
any provision in relation to a harbour authority which could be
included in a harbour revision order under section 14 of the Harbours
Act 1964 (c. 40) by virtue of any provision of Schedule 2 to that Act;
35
(b)
provision conferring power on the authority to change provision made
in relation to it (by the order or by virtue of this paragraph), where the
provision is about—
(i)
the procedures (including financial procedures) of the
authority;
40
(ii)
the power of the authority to impose charges;
(iii)
the power of the authority to delegate any of its functions;
(iv)
the welfare of officers and employees of the authority and
financial and other provision made for them.
(6)
The order may not include provision—
45
(a)
which, by virtue of any other provision of this Act, is not permitted to
be included in an order granting development consent;

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
79

(b)
conferring power on a harbour authority to delegate, or makes changes
to its powers so as to permit the delegation of, any of the functions
mentioned in paragraphs (a) to (f) of paragraph 9B of Schedule 2 to the
Harbours Act 1964 (c. 40).
145
Discharge of water
5
(1)
This section applies if—
(a)
an order granting development consent includes provision authorising
the discharge of water into inland waters or underground strata, and
(b)
but for the order, the person to whom development consent is granted
would have had no power to take water, or to require discharges to be
10
made, from the inland waters or other source from which the
discharges authorised by the order are intended to be made.
(2)
The order does not have the effect of conferring any such power on that person.
146
Development of Green Belt land
(1)
This section applies if an order granting development consent includes
15
provision—
(a)
authorising the acquisition of Green Belt land, compulsorily or by
agreement,
(b)
authorising the sale, exchange or appropriation of Green Belt land, or
(c)
freeing land from any restriction imposed upon it by or under the
20
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.
(2)
The decision-maker must notify the relevant local authorities of the provision
made by the order.
(3)
If the decision-maker is a Panel or the Council, the decision-maker must also
25
notify the Secretary of State of the provision made by the order.
(4)
The relevant local authorities are—
(a)
each local authority in whose area all or part of the land is situated,
(b)
any local authority in whom all or part of the land is vested, and
(c)
each contributing local authority.
30
(5)
In this section “local authority” and “contributing local authority” have the
same meanings as in the Green Belt (London and Home Counties) Act
1938 (c. xciii) (see section 2(1) of that Act).
147
Deemed consent under section 34 of the Coast Protection Act 1949
(1)
An order granting development consent may include provision deeming
35
consent under section 34 of the Coast Protection Act 1949 (c. 74) to have been
given for any operations only if the operations are to be carried out wholly in
one or more of the areas specified in subsection (2).
(2)
The areas are—
(a)
England;
40
(b)
Wales;
(c)
waters adjacent to England or Wales up to the seaward limits of the
territorial sea;

Planning Bill
Part 7 — Development consent orders
Chapter 1 — Content of development consent orders
80

(d)
an area designated under section 1(7) of the Continental Shelf Act 1964
(c. 29).
(3)
Subsection (4) applies if an order granting development consent includes
provision—
(a)
deeming consent under section 34 of the Coast Protection Act 1949
5
(c. 74) to have been given subject to specified conditions, and
(b)
deeming those conditions to have been imposed by the Secretary of
State under that section.
(4)
A person who fails to comply with such a condition does not commit an offence
under section 160 of this Act.
10
148
Deemed licences under Part 2 of the Food and Environment Protection Act
1985
(1)
An order granting development consent may include provision deeming a
licence to have been issued under Part 2 of the Food and Environment
Protection Act 1985 (c. 48) for any operations only if the operations are to be
15
carried out wholly in one or more of the areas specified in subsection (2).
(2)
The areas are—
(a)
England;
(b)
waters adjacent to England up to the seaward limits of the territorial
sea;
20
(c)
a Renewable Energy Zone, except any part of a Renewable Energy
Zone in relation to which the Scottish Ministers have functions;
(d)
an area designated under section 1(7) of the Continental Shelf Act 1964,
except any part of that area which is within a part of a Renewable
Energy Zone in relation to which the Scottish Ministers have functions.
25
(3)
Subsections (4) and (5) apply if an order granting development consent
includes provision—
(a)
deeming a licence to have been issued under Part 2 of the Food and
Environment Protection Act 1985 subject to specified provisions, and
(b)
deeming those provisions to have been included in the licence by virtue
30
of that Act.
(4)
A person who fails to comply with such a provision does not commit an
offence under section 160 of this Act.
(5)
Paragraphs 1 and 2 of Schedule 3 to the Food and Environment Protection Act
1985 (licences: right to make representations etc.) do not apply in relation to the
35
deemed licence.
149
Removal of consent requirements
(1)
An order granting development consent may include provision the effect of
which is to remove a requirement for a prescribed consent or authorisation to
be granted, only if the relevant body has consented to the inclusion of the
40
provision.
(2)
“The relevant body” is the person or body which would otherwise be required
to grant the prescribed consent or authorisation.