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These notes relate to the Lords Amendments to the Planning Bill, as brought from the House of Lords on 18th November 2008 [Bill 171]




1.     These explanatory notes relate to the Lords Amendments to the Planning Bill, as brought from the House of Lords on 18th November 2008. The notes have been prepared by the Department for Communities and Local Government in order to assist the reader of the Bill and the Lords Amendments, and to help inform debate on the Lords Amendments. They do not form part of the Bill and have not been endorsed by Parliament.

2.     These notes, like the Lords Amendments themselves, refer to HL Bill 69, the Bill as first printed for the Lords.

3.     These notes need to be read in conjunction with the Lords Amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Lords Amendments.

4.     With the exception of Lords Amendments 115 and 160, all the Lords Amendments were tabled or supported by the Government.


Lords Amendments 1, 2 and 8

5.     Lords Amendment 1 would provide that, if a national policy statement sets out policy in relation to a particular description of development, the statement must also set out criteria to be taken into account in the design of that description of development.

6.     Clause 5(6) provides that a national policy statement must give reasons for the policy set out in the statement. Lords Amendment 2 would provide that these reasons must include an explanation of how the policy takes account of policy relating to the mitigation of, and adaptation to, climate change.

7.     Clause 10 imposes a sustainable development objective in relation to the Secretary of State’s exercise of the functions concerning designation and review of national policy statements. Lords Amendment 8 would make it clear that the objective includes

Bill 171-EN     54/3     a requirement that the Secretary of State have regard to the desirability of mitigating, and adapting to, climate change and achieving good design.

Lords Amendments 3, 4, 9, 10, 11, 20 to 24 and 70 to 75

8.     Lords Amendment 3 would set out considerations which must be taken into account by the Secretary of State when deciding when to review all or part of a national policy statement.

9.     Lords Amendment 3 would also enable a review to be of only part of a national policy statement (rather than the whole statement). Lords Amendments 4,9,10,11,20 to 24 and 70 to 75 are consequent on this change.

Lords Amendments 5, 6, 45, 46, 66 and 67

10.     These amendments would add National Park authorities and the Broads Authority as consultees on the publicity requirements for proposed national policy statements (clause 8), for the purposes of pre-application consultation (clause 42), and as interested parties for the purposes of examination of applications (clause 99).

Lords Amendment 7

11.     Clause 9 stipulates the process of parliamentary scrutiny of proposed national policy statements. The Secretary of State is currently required to lay a statement setting out the Secretary of State’s response to a resolution of either House or recommendations of a Committee of the House of Commons. The amendment would require the Secretary of State to respond to recommendations of a committee of either House.

Lords Amendments 12 to 19

12.     Lords Amendment 12 would make it clear that the Secretary of State’s power to designate a pre-commencement statement as a national policy statement is subject to the provisions of clause 5.

13.     Lords Amendment 15 would insert new subsections into clause 12. The new subsections would[rj1]— - provide that a pre-commencement statement of policy cannot be designated under clause 5 if there has been a significant unanticipated change in the circumstances on which the policy in it was based and (if that change had been anticipated) would have meant that the policy would have been materially different. - clarify that the sustainability appraisal, consultation and parliamentary scrutiny requirements, and the requirement to give reasons, contained in clause 5(3) to (7) will continue to apply in a case where the Secretary of State proposes to designate a pre-commencement statement.

14.     Lords Amendment 16 would provide that the Secretary of State can take account of appraisal carried out before the commencement day for the purpose of complying with clause 5(3).

15.     Lords Amendment 17 would ensure that pre-commencement statements of policy are subject to parliamentary scrutiny before designation, and that pre-commencement parliamentary scrutiny cannot be taken into account for this purpose.

16.     Lords Amendments 13,14,18 and 19 would make minor drafting changes to clause 12, so that the expression “pre-commencement statement” is used throughout the clause.

Lords Amendments 25, 26, 28 to 31, 64, 94, 97 to 99, 176, 182, 203 and 205

17.     Lords Amendment 25 would amend clause 14 by adding a new category of project to the types of projects that are “nationally significant infrastructure projects” and are therefore subject to the requirement for development consent under the Bill. The new category would be the construction of major pipelines by gas transporters licensed under the Gas Act 1986.

18.     Lords Amendment 29 would insert a new clause specifying the conditions for when the construction of a pipeline by a gas transporter will be considered a nationally significant infrastructure project. In particular, the pipeline must be expected to satisfy the conditions set out in subsections (2) to (5) of the clause.

19.     Subsection (6) of the new clause is intended to respect the devolution settlement, in ensuring that, in a case where a project is to construct a cross-border gas transporter pipeline, only the construction of so much of the pipeline as is in England will be a nationally significant infrastructure project and thus subject to the requirement for development consent.

20.     Lords Amendments 26, 30, 31, 64, 97, 98, 99 and 182, 203 and 205 would make consequential amendments to ensure that existing provisions of the Bill relating to pipelines (in particular, those within clause 20) do not apply to the new clause. This is particularly important as the existing provisions are capable of applying to pipelines in Wales and, for cross-border oil and gas pipelines, Scotland.

21.     Lords Amendments 28, 94 and 176 would replace definitions of “gas transporter” in several places in the Bill with a single Bill-wide definition in clause 220.

22.     Lords Amendment 178 would insert a reference to the new clause on gas transporter pipe-lines into subsection (1) of clause 225. The effect would be to confine the extent of the new clause to England and Wales only.

23.     Lords Amendment 214 is consequential on the addition of the construction of gas transporter pipe-lines in England as a category of nationally significant infrastructure project. Schedule 12 modifies the Bill in so far as it applies to Scotland. Paragraph 2 of the Schedule currently provides for section 14(1) to apply as if certain paragraphs were omitted. Lords Amendment 214 would add a reference to the paragraph in section 14(1) which refers to gas transporter pipe-lines. The amendment reflects the fact that construction of a gas transporter pipe-line would not count as a nationally significant infrastructure project to the extent that the pipe-line is in Scotland.

Lords Amendments 27

24.     Lords Amendment 27 relates to the electric lines category of nationally significant infrastructure project. At present the category includes an exception for the installation of an electric line above ground where the line has a nominal voltage that is not expected to exceed 20 kilovolts and is intended to be used for supplying a single consumer. The amendment would alter this exception so that it covers the installation above ground of an electric line with a nominal voltage which is expected to be less than 132 kilovolts, and the reference in the exception to the intended use is removed.

Lords Amendments 32 to 34

25.     Clause 25 specifies certain conditions that must be met before the construction or alteration of a rail freight interchange counts as a nationally significant infrastructure project for the purposes of the new development consent regime. One of the conditions is that the interchange must be capable of handling at least four container trains per day. Lords Amendments 32 to 34 would change this to a requirement for the interchange to be capable of handling at least four “goods” trains per day. The intention is to address the point that not all goods carried by train are transported in containers.

Lords Amendments 35 and 36

26.     These amendments would increase the threshold for the types of waste water treatment plants that will be considered nationally significant, and so be subject to the development consent regime. The new thresholds would be a population equivalent of 500,000, in place of the existing 150,000. This would mean that applications for construction or alteration of only the largest waste water plants would be determined within the new regime.

Lords Amendments 37, 38 and 93

27.     Clause 31 defines the expression “development” for the purposes of the Bill. Subsection (1) provides that this definition does not apply for the purposes of Part 11 of the Bill (about the Community Infrastructure Levy), but subsections (2) and (3) are not expressly disapplied in relation to Part 11. The changes to subsections (2) and (3) which would be made by Lords Amendments 37 and 38 put the matter beyond doubt. Lords Amendment 93 would make an equivalent change to clause 148 (which states when development is taken to begin).

Lords Amendments 39 and 40

28.     The effect of Lords Amendments 39 and 40 would be to clarify that Transport and Works Act orders come within clause 33 only if they actually authorise the construction or extension of a generating station in Welsh waters, rather than merely being made in relation to the construction or extension of such a generating station.

Lords Amendments 41 and 42

29.     Lords Amendments 41 and 42 relate to the power of the Secretary of State under clause 34 to direct that certain applications for consent or authorisation for development should be treated as an application for development consent. The effect of the amendments would be that such a direction could be given only where the development for which consent or authorisation is sought is in one particular field of infrastructure.

Lords Amendments 43, 44, 50, 51, 53 to 56 and 200

30.     Lords Amendment 43 would expand the matters which must be dealt with in the consultation report to be submitted along with an application for an order granting development consent. It would require the consultation report to give details of the consultation carried out with local authorities, local land owners and others, and of how the proposed application has been publicised.

31.     Lords Amendment 54 would give the Secretary of State and the Commission general powers to give guidance to prospective applicants for development consent in relation to the pre-application procedures. These general powers would replace the specific powers conferred by clauses 41(2) and 46(5)(b) and (c). The applicant would be required to have regard to any guidance given.

32.      Lords Amendment 44 would remove the specific power to give guidance conferred by clause 41(2), and Lords Amendment 53 would remove the specific powers conferred by Clause 46(5)(b) and (c). Lords Amendments 50, 51 and 200 would make further changes consequent on the general power that would be conferred by Lords Amendment 54.

33.     Lords Amendments 55 and 56 would require the Commission, in deciding whether an applicant has complied with the pre-application procedure, to take account of the applicant’s consultation report and the extent to which the applicant has had regard to any guidance issued under the new general power conferred by Lords Amendment 54.

Lords Amendments 47, 48, 57 and 58

34.     The effect of Lords Amendments 47 and 48 would be that an applicant for development consent would be required to consult a person within clause 43(1) or (4) only if the person was known to the applicant after making diligent inquiry.

35.     Lords Amendments 57 and 58 would have a corresponding effect in relation to the requirement under clause 54(2)(d) to give notice of an accepted application to certain persons.

Lords Amendments 49, 59, 87, 91, 92, 95, 96 and 215

36.     Lords Amendments 95 and 96 would replace clause 151 with a new clause conferring a defence of statutory authority in nuisance claims in more limited circumstances than those provided for in clause 151.

37.     Lords Amendment 91 would insert a new clause the effect of which would be to prevent a development consent order from excluding liability under the statutory regimes specified in the new clause.

38.     Lords Amendment 92 would confer a right to compensation in cases where, as a result of the new clause that would be inserted by Lords Amendment 95 or the terms of a development consent order, a person would not be able to succeed in a claim for nuisance in respect of works authorised by a development consent order. The compensation would be available in relation to injurious affection to a person’s land or depreciation in its value.

39.     Lords Amendment 215 would make the modifications necessary for the new clauses inserted by Lords Amendments 91 and 92 to apply in relation to land in Scotland.

40.     Lords Amendments 49 and 59 would make changes needed in consequence of the new clause that would be inserted by Lords Amendment 95.

41.     Lords Amendment 87 would make a change consequent on the new clause that would be inserted by Lords Amendment 92. Lords Amendment 52

42.     As currently drafted, clause 46 provides that the prospective applicant must consult people living in the vicinity of the land about the proposed development. Lords Amendment 52 would change the subject matter of the consultation from the proposed development to the proposed application. This would bring the drafting into line with the wording used in clauses 36, 41 and 47.

Lords Amendment 60

43.     Lords Amendment 60 would remove subsection (6) from clause 58. The effect would be that the deadline specified for receipt by the Commission of a local impact report would not have to be the same as the deadline for completion of the examination of the application by a Panel or a single Commissioner.

Lords Amendments 61 and 62

44.     Clause 65 enables a Commissioner to elect to continue to act as a Panel member in relation to an application, notwithstanding that he or she is ceasing to hold office. Clause 69 makes corresponding provision in relation to a person ceasing to act as a single Commisioner. Subsection (4) of each clause currently provides that an election is effective only if it is made in the prescribed form. Lords Amendments 61 and 62 would remove the need for regulations to prescribe the form of the election, and would provide instead for the election to be made in writing and given to the Commission’s chief executive and specified Commissioners.

Lords Amendment 63

45.     Lords Amendment 63 would remove the word “exceptionally” from clause 92(7). This is on the grounds that the word is superfluous in the context.

Lords Amendment 65

46.     The new clause inserted by this amendment would allow the chair of the Commission to appoint a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority (a Panel or a single Commissioner). The advice and assistance which might be provided includes oral questioning at a hearing. The Examining authority would be required to request an appointment before one could be made.

Lords amendments 68 and 69

47.     Lords amendments 68 and 69 would make it clear that the fact that a national policy statement that is applicable in any particular case identifies a location as one which the Secretary of State considers suitable (or potentially suitable) for a particular description of development does not prevent the Commission from deciding other than in accordance with the national policy statement if one or more of the grounds in subsections (4) to (8) of clause 101 applies.

Lords Amendments 76, 77 and 174

48.      Lords Amendment 76 would introduce a new clause conferring on the Secretary of State the power to make an order prescribing additional circumstances in which the Secretary of State may direct that an application for development consent must be referred to the Secretary of State. Where intervention occurs, the Secretary of State has the power of examining and deciding the application, and can direct the Commission to examine specified matters in relation to the application.

49.     Lords Amendment 77 is a drafting amendment to link the new clause that would be inserted by Lords Amendment 76 to clause 108.

50.     Lords Amendment 174 would provide that an order made under the new clause is subject to the affirmative procedure.

Lords Amendments 79 to 86, 169, 170, 173, 206 to 208, 210 to 212

51.     Lords Amendment 79 would remove the need for orders granting development consent to be made under the seal of the Commission.

52.     Lords Amendment 80 would remove the requirement for orders granting development consent made by the Secretary of State to be made under seal. This amendment would also remove the requirement for interested parties to be sent a copy of an order granting development consent. Interested parties will continue to be entitled to a copy of the decision letter and statement of reasons under clause 112.

53.     Lords Amendments 81 to 83 would impose a requirement that an order including legislative provisions made under clause 116(5) be made by statutory instrument (this would subject the order to the publication requirements of the Statutory Instruments Act 1946). A copy of the statutory instrument would have to be deposited in the office of the Clerk of the Parliaments[rj2] along with (the latest version of) any plan submitted to the Commission by the applicant and the statement of reasons for the decision to grant development consent.

54.     Lords Amendments 84 to 86 would make consequential changes to the provisions on legal challenges, altering the date which marks the beginning of the six week period for filing a claim form.

55.     Lords Amendments 206 to 208 and 210 to 212 would have the effect that, where an order granting development consent was required to be made by statutory instrument, the power to correct, or make an order changing or revoking, the order, must also be exercised by statutory instrument.

56.     Lords Amendments 169, 170 and 173 are consequential on the amendments described above.

Lords Amendments 88 and 89

57.     Lords Amendments 88 and 89 relate to the conditions which must be satisfied for the special parliamentary procedure to apply to an order granting development consent which authorises the compulsory acquisition of local authority land, statutory undertakers’ land or inalienable National Trust land. The amendments would have the effect that the special parliamentary procedure applied only if representations had been made about the order in question, rather than requiring it to apply if representations had been made about any application for an order granting development consent.

Lords Amendments 90 and 179

58.     Lords Amendment 90 would insert a new clause, which states that an order granting development consent cannot include provisions that exclude or modify the application of a provision of or made under the Commons Act 2006, or authorise the suspension of, or extinguishment or interference with, registered rights of common. The exception to this is when an order granting development consent authorises the compulsory acquisition of common land or a right over it and the provisions of clause 127 or 128 apply.

59.     Lords Amendment 179 would make a consequential amendment to the extent clause so that the extent of the new clause on commons is England and Wales only.

Lords Amendments 100 and 181

60.     Lords Amendment 100 would give the Secretary of State the power to make grants for the purpose of assisting with the provision of advice and assistance in connection with any matter which is related to the application of the Planning Bill to Scotland. The new clause inserted in the Bill is the equivalent to clause 170 which allows the giving of grants for advice and assistance in connection with a matter related to the application of the Planning Bill in England or Wales.

61.     Lords Amendment 181 would make a consequential change to restrict the extent of the new clause to Scotland only.

Lords Amendment 101

62.     Lords Amendment 101 would insert a new clause amending the Planning and Compulsory Purchase Act 2004 (“the PCPA 2004”) to require regional spatial strategies to include policies on climate change. These policies must be designed to secure that the development and use of land in the region to which a regional spatial strategy relates contribute to the mitigation of, and adaptation to, climate change.

Lords amendments 102 and 188

63.     Section 39 PCPA 2004 imposes a duty on those exercising functions in relation to development plans in England and Wales to do so with the objective of contributing to the achievement of sustainable development. Lords Amendment 102 would insert a new clause amending section 39, requiring them, in complying with this duty, to have regard (in particular) to the desirability of achieving good design. The effect of Lords Amendment 188 would be that this provision would be commenced by the Secretary of State in relation to England and by Welsh Ministers in relation to Wales.

Lords Amendments 103 to 106 and 116

64.     Lords Amendments 103 to 106 would omit clauses 177 to 180 from the Bill. Those clauses make provision for the determination of planning applications by officers of local planning authorities and for the review of those determinations by local planning authorities. Lords Amendment 116 is consequential on the omission of clauses 177 to 180.

Lords Amendments 107 to 110

65.     Clause 183 amends section 108 of the Town and Country Planning Act 1990 (“the TCPA 1990”) so that there will be no entitlement to compensation where notice of the withdrawal of planning permission granted by development order or local development order is published not less than 12 months or more than the prescribed period before the withdrawal takes effect.

66.     The effect of Lords Amendments 109 and 110 would be that, in the case of planning permission granted by development order, the entitlement to compensation would be removed only where the planning permission was granted for development of a prescribed description and withdrawn in the prescribed manner.

67.     Lords Amendment 108 would provide that, where planning permission granted by a development order or local development order is withdrawn by the issue of directions under powers conferred by that order, compensation would be payable only if an application for planning permission for development formerly permitted by that order is made within 12 months of the directions taking effect. Lords Amendment 107 is consequential on Lords Amendment 108.

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Prepared: 19 November 2008