Select Committee on Delegated Powers and Regulatory Reform Twelfth Report

APPENDIX 3: PLANNING BILL

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Memorandum by the Department for Communities and Local Government

1.  This Memorandum describes the purpose and content of the Planning Bill; identifies the provisions of the Bill which confer delegated powers on either the Secretary of State, the Infrastructure Planning Commission, Welsh Ministers or the National Assembly for Wales; and explains in each case why the power has been taken and the nature of, and reason for, the procedure selected.

Background and purpose of the Bill

Nationally significant infrastructure

2.  Recent government-sponsored reports on the planning system by Sir Rod Eddington and Kate Barker uncovered dissatisfaction among promoters of major infrastructure projects at how the current planning system and consent regimes work. In particular, promoters were concerned that the current planning system can take too long; it can create too much uncertainty for local communities, business and promoters; and the system can cost too much for all participants and for the UK economy.

3.  The Eddington and Barker reports set out similar proposals for how a reform of the planning system could better accommodate major infrastructure projects. This is based on the Government making clear statements of national policy for each type of infrastructure, and outlining the levels of infrastructure the country requires. With a clear statement of national policy in place, there would no longer be a need for Ministers to be involved at the final stage of the decision-making process, and they recommended that a new planning body be created - an independent Infrastructure Planning Commission, composed of experienced professional experts.

4.  In the White Paper published in May 2007, the Government accepted many of the Barker and Eddington conclusions and recommendations, including:

• national policy statements to be produced by Ministers following extensive public consultation and Parliamentary debate, to ensure a clear policy framework for nationally significant infrastructure which integrates environmental, economic and social objectives;
• an independent Infrastructure Planning Commission to determine applications for nationally significant infrastructure projects;
• help for promoters of infrastructure projects to improve the way that they prepare applications by making better advice available to them; by requiring them to consult fully on proposals for development; and by encouraging early and effective engagement with key parties such as local authorities, statutory bodies, and relevant highway authorities; and
• streamlining the procedures for infrastructure projects of national significance by rationalising the different consent regimes and improving the inquiry procedures for all of them.

5.  Government has considered carefully the responses that it has received during the public consultation, and believes that the legislation that would set up a new planning system for the biggest infrastructure projects needs to remain flexible to accommodate changing technologies and circumstances. In particular, it believes it is justified that an expert Infrastructure Planning Commission should be able to make orders that grant development consent, on the basis of a framework of national policy set down by Ministers for the type of infrastructure in question. It also believes that the viability of the planning system for nationally significant infrastructure projects depends on promoters being able to make a single application for a development consent that can provide all necessary powers and authorisations for their project to go ahead.

Community Infrastructure Levy

6.  The Government also consulted widely on whether a Planning-gain Supplement was the right way to ensure that local communities receive more of the benefits from planning gain, to invest in necessary infrastructure and transport. After extensive consultation, the Prime Minister indicated in July 2007 that the Government would be prepared to defer legislation to introduce a Planning-gain Supplement (PGS) if a better way could be found to achieve these objectives. The Housing Green Paper[2] sought views on PGS and possible alternative approaches.

7.  Following discussions with key stakeholders, during which many in the industry including the British Property Federation, the Home Builders Federation, London First and the Major Developers Group, supported proposals that built on the current planning obligations regime (under s106 of the Town and Country Planning Act 1990), the Government announced on 9 October that it would introduce provisions in the Planning Bill for a new statutory planning charge (now known as "the Community Infrastructure Levy") to help fund the infrastructure needed to support housing growth, and would defer introducing a Planning-gain Supplement Bill. Part 11 of the Bill covers the Community Infrastructure Levy ("CIL").

8.  The new levy is intended to:

• Capture more planning gain to finance additional investment in local and strategic infrastructure, while preserving incentives to develop;
• Make the planning charge-setting process (currently done on the basis of the Secretary of State's policy as set out in Circular 5/05 'Planning Obligations') simpler and more certain by giving a clear basis on which to set a planning charge to support the delivery of planned infrastructure;
• Provide a fairer means of securing contributions from developers for infrastructure. At present, infrastructure benefits for local communities are typically secured from major developments only - only 4% of minor planning applications attract a planning obligation[3]; and
• Encourage regions and local authorities to plan positively for housing and economic growth and for the infrastructure needed to deliver it, and, with the development plan as the context, to decide priorities and detailed charging arrangements which reflect local and regional needs and circumstances.

9.  CLG has continued to have intensive discussions with key stakeholders from the development and property industries and from local government to ensure that CIL can be designed to deliver these objectives and be as efficient and effective as possible.

Improvements to the town and country planning regime

10.  The Bill also sets out a series of amendments and changes to the existing town and country planning regime. These amendments are designed to improve the performance of the planning system at key points in the planning process.

Overview of the delegated powers in the Bill

11.  At the heart of the reform package set out in the White Paper and this Bill is the idea that there should be a clarification of the Secretary of State's role in respect of planning decisions on nationally significant infrastructure. Policy on such infrastructure would continue to be set by Ministers, after appropriate levels of consultation with the public and scrutiny in Parliament and with the public. Decisions on individual applications should be taken within the framework of Ministerial policy, but by an independent and expert IPC rather than by Ministers. At the same time, it is Ministers' intention that the IPC should be able to function as a single point of decision making, able to grant the full range of consents, authorisations and powers that might be needed in order to allow a nationally significant infrastructure project to progress.

Decision-making in a framework of Ministerial policy

12.  The majority of delegated powers in the Bill set out to achieve these two aims: providing a comprehensive framework of Ministerial policy within which the IPC can take decisions on individual projects, and harnessing together the variety of consent regimes that apply to nationally significant infrastructure projects into a new single consent regime.

13.  Several delegated powers in the Bill give the Secretary of State the power to prescribe minimum levels of detail in respect of the application process. Examples of these include powers for the Secretary of State to prescribe the form and manner that applications must take, to set out lists of statutory consultees who must be consulted before any application is made, and to prescribe procedural rules for the IPC's examination. Other delegated powers allow the Secretary of State to give the IPC guidance on key issues it will be required to make judgements about. Examples of the latter include guidance on how to decide whether an application is best examined by a Panel or a single Commissioner, guidance on what types of works constitute "associated development", and guidance about the making of a development consent order which contains provisions authorising compulsory acquisition of land.

Single consent regime

14.  Rather more extensive delegated powers are contained in the provisions that give effect to the single consent regime. This is based on a disapplication of the requirements of existing consents regimes insofar as they would apply to a nationally significant infrastructure project (see Schedule 2); in place of these various consents, applicable projects will require development consent under the new regime. The only exceptions to this are for consents granted under the Coast Protection Act 1949 (CPA), and Food and Environment Protection Act 1985 (FEPA). In the case of these two regimes, the IPC is permitted to grant deemed consents. This is to preserve the unique enforcement regimes that apply in relation to the CPA and FEPA. Given the variety of different matters that may need to be incorporated into the development, Ministers believe that it is appropriate that development consent be made in the form of an order with a variety of provisions contained within it.

15.  This is the model that already exists for decisions by Ministers to grant development consent for projects under the Transport and Works Act 1992. This legislation allows Ministers to grant orders that contain a variety of provisions that might be necessary for a particular project. The provisions in this Bill relating to the matters which may form part of an order granting development consent follow closely the model used in the Transport and Works Act except that the IPC will be the decision maker, rather than the Secretary of State. In particular, Schedule 5 is functionally similar to Schedule 1 to the Transport and Works Act, albeit with modifications as necessary so that the single consent regime can also apply to other types of infrastructure than are contained in that Act.

16.  Powers already exist in other legislation to make provision for the items contained in clause 116 and Schedule 5, and Ministers are not intending to extend the scope of these existing powers. Instead, the existing range of powers under the Transport and Works Act 1992, the Electricity Act 1989, the Harbours Act 1964 and other pieces of legislation covered by the single consent regime are consolidated and replicated. The provisions contained in Schedule 5 include the ability for the IPC to authorise compulsory purchase of land. Also included in clause 116 is the ability that currently exists under Transport and Works Act and the Harbours Act for an order to apply, modify or exclude provisions made under an Act where these relate to matters within the order. Further details of how these powers will be used can be found in the paragraphs that deal in detail with clause 116 and Schedule 5.

17.  The Committee should note that under the terms of Part 6 (Chapters 2 & 3), the IPC (through its Panel or Single Commissioner procedures) will only be able to make use of order-making powers if the order relates to an application about which a national policy statement is in force, since the IPC will only be able to determine the application if a national policy statement exists. Where no relevant national policy statement is in force, Ministers will take final decisions and make orders in their own name.

18.  This Bill does not provide for Parliament to have a role in confirming orders that grant development consent. There are several reasons for this. In the first place, Parliament will already have scrutinised the national policy statement for any given type of infrastructure .The national policy statement sets a framework for decisions on applications for such infrastructure - and hence on orders granting development consent. The IPC's role will be to take an executive judgement as to whether the proposed infrastructure is in accordance with national policy and law, whether the benefits of the detailed proposals outweigh adverse effects, and whether the mitigation measures in the proposal are acceptable.

19.  Secondly, the order granting development consent will usually be based on model provisions issued by the Secretary of State. As mentioned in the section of this memorandum on clause 37 on model provisions, the Secretary of State will issue model provisions by means of a statutory instrument subject to negative resolution.

20.  Thirdly, Parliament does not at present have a confirmatory role as regards several of the consent regimes the new single consent regime is designed to replace. In the case of orders under the Transport and Works Act, there is only a very limited place for Parliamentary involvement, and there has not yet been a single case where a Transport and Works Act order has been subject to Parliamentary scrutiny. Ministers believe that this is an appropriate position, and that the reintroduction of a separate Parliamentary stage into the process would not serve the public interest. They do not believe that there are good reasons to prolong the period of uncertainty after a decision is made, as the decision itself will already have been made in accordance with valid government policy.

Part 9: Changes to Existing Regimes

21.  Part 9 makes amendments to the existing town and country planning regime. It alters current provisions on local development documents, provides for development plans to be remitted to a specified point in the plan-making process on a successful challenge in the High Court, and amends existing provisions on fees for planning applications and appeals. It also provides for the determination of certain planning applications by officers of a local planning authority (LPA) with subsequent review by the LPA.

22.  In addition, it introduces a requirement for development plan documents to include policies contributing to the mitigation of, and adaptation to, climate change; amends provisions on correction of errors in decisions; provides for minor amendments to be made to existing planning permissions; empowers the Secretary of State to determine the procedure for certain proceedings; makes provision on the determination of repeat applications; removes the requirement for local development orders to implement policies; modifies provisions on appeals by statutory undertakers; modifies provision on appeals relating to old mining permissions; and provides for the removal of the right to compensation on the removal of permitted development rights.

Wales

23.  Part 10 contains provisions relating to Wales. It gives the National Assembly for Wales legislative competence in relation to plans made by Welsh Ministers and local planning authorities in relation to the development and use of land in Wales. It also gives Welsh Ministers the power, by order, to make provision to apply to Wales a number of miscellaneous reforms to the planning regime included in the Bill on an England-only basis.

The Community Infrastructure Levy

24.  Part 11 of the Bill is designed to set out the framework for the Community Infrastructure Levy. The general approach taken in Part 11 is for CIL to be implemented through regulations, which (as explained below) will ensure flexibility so that it is, for example, possible to adapt over time to meet changing circumstances as local authority skills and practice in developing CIL improve or to meet particular local circumstances. Industry stakeholders have welcomed this approach to legislating for CIL. The British Property Federation and the Home Builders Federation announced that they "welcome the fact that the Community Infrastructure Levy clauses of the Planning Bill are enabling clauses. This will provide the necessary flexibility to implement the levy through regulations and guidance as its full details are developed."[4] Importantly, however, the powers to make regulations are subject to the affirmative resolution of the House of Commons. Further information on how the Government intends to use the powers in Part 11 will be published before the summer.

Delegated powers clause by clause

Part 1 - the Infrastructure Planning Commission

Clause 2 - Code of Conduct

Powers conferred on:     Infrastructure Planning Commission/Secretary of State

Powers exercised by:     code of Commission/Secretary of State

Parliamentary procedure:   none

25.  This clause requires the IPC to create a code of conduct about the conduct expected of its Commissioners, in connection with the performance of the Commission's functions. The Secretary of State is given a power to direct that provision is made in the Code in relation to specified matters. The aim of the code of conduct is to give criteria by which the conduct of any individual Commissioners could be judged in any disciplinary procedures - including where the Secretary of State is to decide (in Schedule 1, paragraph 4(2)) whether a Commissioner is unfit to perform the duties of the office. The code of conduct should as a minimum include a requirement for Commissioners to disclose their financial interests. It is considered appropriate to leave the issue of the Code of Conduct to the IPC itself, as it will need to be based on operational matters. This is an administrative measure, and no Parliamentary procedure is involved.

Clause 4 - Fees

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

26.  Clause 4 provides that the Secretary of State may make regulations providing for the charging of fees by the Infrastructure Planning Commission in connection with the performance of any of its functions. This is intended to ensure that the IPC can recover from promoters of nationally significant infrastructure projects the costs of giving advice, holding inquiries, assessing evidence and reaching decisions.

27.  At present a fee is generally payable by a promoter on an application for development consent for a major infrastructure project. Much of the detail of fees is contained in delegated legislation. This Bill will exempt nationally significant infrastructure projects from the need to obtain consent, and therefore from the requirement to pay fees under existing consent regimes (eg Section 303 of the Town and Country Planning Act 1990, paragraph 1 of Schedule 8 to the Electricity Act 1989 and section 6(5) of the Transport and Works Act 1992). In consequence a new provision is needed to ensure that the costs of the IPC can be met from fees.

28.  This is a standard fee setting power and the Department considers that it is appropriate that the fee is set out in secondary legislation as the level of the fees will vary greatly between projects of differing complexity, and will need to be updated regularly to reflect inflation and the changes in the IPC's costs in carrying out its functions in an area subject to considerable innovation and technological change. This power is administrative in nature, and it is considered that it is suitable for the negative resolution procedure to apply in line with current fee setting powers.

Part 2 - National Policy Statements

Clause 7 - Consultation requirements

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

29.  This clause gives the Secretary of State the ability to make regulations prescribing a list of persons and descriptions of persons who must be consulted when the Secretary of State proposes a new national policy statement or amendments to an existing national policy statement.

30.  A list of statutory consultees already exists in many other consent regimes that will be covered by the single consent regime in this Bill, but in those schemes, statutory consultee status is conferred by reference to the type of development being undertaken. In this clause, the power exists for the Secretary of State to designate those persons and bodies who are to have a statutory right to be consulted in relation to the policy that is to be applied to particular types of development. This is intended to cement consultation with interested parties into the new system - allowing such persons to comment on overall government policy well before a specific project was proposed to meet the overall policy. At this stage it is impossible to identify the full range of individuals, or groups of individuals, who the Secretary of State would wish to consult in relation to different types of policy. This clause therefore permits the Secretary of State to designate statutory consultees by regulations, as and when necessary.

31.  In line with other powers that allow the Secretary of State to prescribe lists of statutory consultees, Ministers believe that the negative resolution procedure is appropriate.

Clause 9 - Parliamentary requirements for National Policy Statements

Powers conferred on:     Secretary of State

Powers exercised by:     administrative decision

Parliamentary procedure:   none

32.  This clause deals with the Secretary of State's obligations to lay a proposed national policy statement before Parliament, before designating it as such. The Secretary of State is obliged to specify a period for either House of Parliament to make a resolution with regard to the proposals, or for a committee of the House of Commons to make recommendations. Where either House of Parliament makes a resolution on the proposed national policy statement, or where a committee of the House of Commons makes recommendations on the statement during the specified period, the Secretary of state is required to respond to Parliament before designating the statement. In practice, we anticipate that the Secretary of State would make a declaration at the same time as laying a draft national policy statement before Parliament, as to the period which the Secretary of State proposes to wait before designating the statement as a National Policy Statement. This period would in all cases be longer than the standard period for public consultation on government policy documents, to allow additional time for any committee report and for debate in Parliament on the proposed national policy statement where recommended by the committee's report.

Part 3 - Nationally significant infrastructure projects

Clause 14 - Nationally significant infrastructure projects: general

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   affirmative resolution

33.  This clause gives the Secretary of State the ability to make a statutory instrument that amends the classes of project which are to be treated for the purposes of the Bill as "nationally significant infrastructure projects". This power is intended to be sufficiently broad for the Secretary of State to add or remove a type of development, alter a threshold applying to a particular type of development mentioned in the list or provide an exemption. However to protect the devolution position, the power to amend the categories of project that are to be treated as "nationally significant infrastructure projects" will permit the Secretary of State to add other types of projects only in relation to England.

34.  The Government recognises that this power would function as a Henry VIII power, in that it gives the Secretary of State the ability to make provision by order that adds to or repeals provision in this Bill. Nevertheless, the Government believes such a power is justified, given that innovation and technological change may bring forward new types of project which could be of national importance, and which cannot be foreseen with confidence today. It is possible, for instance, that projects involving the capture and storage of carbon dioxide emissions could be of national significance in the future; and so it is intended that a power to amend the thresholds for "nationally significant infrastructure projects" should be wide enough to ensure that such projects could be included.

35.  The Government accepts that there should be limitations on the scope of such a power, and these have been built into the Bill. In the first place, the power is to be exercisable only in relation to projects which relate to transport, energy, water, waste water or waste. Secondly, the power can only be used under the affirmative procedure, by which the Secretary of State will be required to lay a statutory instrument in draft and will not be permitted to make the final version until the draft has been approved by resolution of both Houses of Parliament.

Part 4 - Requirement for development consent

Clause 34- Directions in relation to projects of national significance

Powers conferred on:     Secretary of State

Powers exercised by:     directions

Parliamentary procedure:   none

36.  Clause 34 affects development which does not meet the thresholds set out in Part 3 of the Bill, for being classed as a nationally significant infrastructure project, and for which the promoter submits an application to the relevant authority. This clause gives the Secretary of State the ability to make a direction regarding this application if the Secretary of State believes that the development involved in the application relates to energy, transport, water, waste water or waste infrastructure situated in England, and that this infrastructure either by itself, or in conjunction with other projects, is of national significance. The effect of a direction under this clause would be to transfer jurisdiction for the determination of the application or applications to the IPC from the authority to which it or they had been submitted.

37.  This clause also gives the Secretary of State the ability to direct the authority to take no action in handling the application, until the Secretary of State has decided whether or not to direct that the application be transferred to the IPC.

38.  Ministers do not believe that Parliamentary scrutiny is necessary on this point. The power to direct that an application be transferred away from local authorities already exists in other consent regimes (such as the call-in process under s.77 of the Town and Country Planning Act 1990) without any Parliamentary involvement, and Ministers do not believe this would be useful in the case of directions of individual applications to the IPC.

Part 5 - Applications for orders granting development consent

Clause 36 - Applications for order granting development consent

Powers conferred on:     Secretary of State/Infrastructure Planning Commission to prescribe the form of an application and the documents and information that are required to accompany an application

Powers exercised by:     order/regulations/guidance

Parliamentary procedure:   negative resolution

39.  Clause 36 gives the Secretary of State the ability to make a statutory instrument which prescribes the form of an application for development consent for a nationally significant infrastructure project and the documents and information that are required to accompany such an application.

40.  Powers for the Secretary of State to prescribe the form of applications exist in most of the consent regimes which currently apply to nationally significant infrastructure projects, and which will be replaced by a single consent regime under this Bill. In the case of the Town and Country Planning Act, this is done through section 62, which enables the Secretary of State to make a development order setting out requirements in relation to the form and manner in which planning applications must be made.

41.  Under existing legislation, the power to prescribe the documentation and information required to accompany an application operates under the negative resolution procedure. Ministers believe this is also appropriate for a prescribing the documentation and information required to accompany an application under this Bill.

42.  This clause also requires the IPC to create and publish guidance as to how the requirements on promoters to follow the procedures regarding documentation and information to accompany an application are to be followed.

Clause 37 - Model provisions

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   negative resolution

43.  Clause 37 allows the Secretary of State to prescribe by order model provisions for incorporation into a draft order. The aim of this clause is for the Secretary of State to publish a series of provisions which he has adjudged to be legally defensible and appropriate in a range of cases, which promoters could use as templates for applications they wish to make. The order issuing model provisions would be subject to negative resolution in Parliament.

44.  This clause follows the model already set out in the Transport and Works Act 1992, under which the Secretary of State can issue model clauses by order. Where a promoter of a project which meets the criteria for a Transport and Works Act order is preparing an application to the Secretary of State, he or she is encouraged in discussions with the relevant Department, to use the model provisions as the basis of the application - with modifications as necessary to fit the precise circumstances of the proposals in question. The existence of model provisions does not pre-determine anything about final decisions to be made on projects, and a project which follows a set of model provisions very closely still needs to demonstrate its benefits and impact-mitigation to the same degree as a project which departs from model provisions.

45.  The existence of model clauses under the Transport and Works Act has proven to be a helpful development for promoters of a transport scheme, opponents of the scheme and the government. This is because applications are prepared better, and are more legally secure - allowing more time at inquiry to be spent debating the environmental, physical and social issues raised by the application rather than by the wording of a particular document. Ministers believe that the existence of model provisions for all proposals for nationally significant infrastructure project would similarly improve the quality of applications and allow for better-focused examination by the IPC.

46.  The existence of model provisions that have been issued by the Secretary of State, and which have received Parliamentary scrutiny, also provides a safety check against the way the IPC uses the powers it will have under clause 116. This is because the form of the development consent ultimately granted by the IPC will usually be based on what the Secretary of State and Parliament have laid out as acceptable as a template.

Clause 39 - Applications for development consent by the Crown

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

47.  This clause makes provision for the Secretary of State to make regulations that modify or exclude the procedures and requirements for an application for development consent, where this is done by or on behalf of the Crown. The aim of this clause is to make provision for accelerated procedures to obtain development consent where there is an urgent need for development done by the Crown. This clause replicates section 298A of the Town and Country Planning Act that allows the Secretary of State to make regulations to modify or exclude any statutory provisions relating to the making or determination of Crown applications for planning permission or established use certificates. It is considered that the negative resolution procedure is appropriate, as this replicates the procedure for regulations made under section 298A of the TCPA.

Clauses 41, 46 & 47 - Duty to consult with local community and to publicise

Powers conferred on:     Secretary of State to prescribe categories of persons who must be consulted; Secretary of State and Infrastructure Planning Commission to issue guidance

Powers exercised by:     order/regulations

Parliamentary procedure:   negative resolution

48.  Clause 41 gives the Secretary of State the ability to make a statutory instrument which prescribes a list of persons whom a promoter of a nationally significant infrastructure project will be required to consult, before submitting an application for development consent. This is a further example of our desire to cement consultation with interested parties into the new system. It is not possible at this stage to identify all those who will need to be consulted before an application for a nationally significant piece of infrastructure is submitted, and it is intended that the Secretary of State will exercise this power to prescribe different classes of persons for different types of infrastructure. The requirement to consult these persons will be in addition to the requirement in clause 41(1) (b)-(d) to consult relevant local authorities, the Greater London Authority and defined categories of people who have a legal interest in the land on which the project is situated. Clause 47 also puts a duty on promoters to publicise their proposals in the manner prescribed by the Secretary of State.

49.  Powers for the Secretary of State to set out a list of statutory consultees exist in most of the consent regimes which currently apply to nationally significant infrastructure projects, and which will be replaced by a single consent regime under this Bill. In the case of the Town and Country Planning Act, this is again done by a development order made pursuant to section 62 of the 1990 Act. Article 10 of the Town and Country Planning (General Development Procedure) Order 1995 sets out a list of those who must be consulted in relation to particular planning applications.

50.  Under existing legislation, the power to prescribe statutory consultees operates under the negative resolution procedure. Ministers believe this is also appropriate for a list of statutory consultees under this Bill.

Guidance on consultation

51.  Clauses 41(2) and 46 (5) also allow the Secretary of State and the IPC to issue guidance to promoters as to how to go about pre-application consultation. Where the IPC does issue guidance, the promoter must have regard to the guidance. In particular, the promoter will need to prepare a statement under clause 46(1) which sets out how he intends to carry out consultation, a statement that will need to show how regard has been paid to this guidance.

52.  One of the central concerns of the White Paper was that the quality of applications for development consent should be as high as possible, to allow a better-informed examination of the proposals. The IPC would describe what it would consider adequate consultation by a promoter on his proposals, as well as defining the standard to which the promoter must prepare the application before the IPC will consider it. Clause 41 should therefore also be read alongside clause 46, under which the applicant will have to set out how he proposes to conduct consultation with the local community, and clauses 36 and 48, which relate to how a promoter should go about preparing an application.

53.  Ministers do not believe that Parliamentary scrutiny is necessary on this point. The effect of the IPC's guidance is to ensure that promoter meet defined standards on consultation of their proposals. If the promoter does not meet these standards, the IPC can reject the application (clause 53). Furthermore, if the IPC's requirements in relation to pre-application consultation are considered to be inadequate, interested parties will be able to raise objections at the examination stage about this. The IPC will be required to take these objections into account in determining the application.

Clause 49 - Advice for potential applicants and others

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

54.  This clause gives the Secretary of State the ability to make regulations about how the IPC is to give advice to applicants and other interested parties during the pre-application stage of an application for development consent. The clause makes it clear that the Secretary of State may not regulate about what the advice is to be.

55.  The need for regulations on this area arises from a need to ensure that advice given by the IPC to promoters about how to make sure that their application meets the required standards, does not prejudice the impartiality of the IPC's decision-making processes when it comes to determining a completed application. The Secretary of State therefore intends to regulate on procedural matters to ensure that the IPC's decision-making is not compromised. Matters to be included in regulations might include that promoters of projects would only be able to speak to members of the IPC's secretariat (i.e. not to any Commissioner); that the guidance that could be given would be on the IPC's procedures and requirements, rather than any specific matter included in an application; and that all advice given would be made public via the IPC's website. Ministers have decided against putting a statement of propriety on these issues on the face of the Bill, since a situation has not yet arisen that would mean that public confidence depends on such a code being made.

56.  As this is a set of regulations covering matters that are not core parts of the IPC's decision-making, Ministers believe that the regulations should be subject to the negative resolution procedure in Parliament.

Clause 50 - Obtaining information about interests in land

Powers conferred on:     Infrastructure Planning Commission

Powers exercised by:     authorisation to serve notice

Parliamentary procedure:     none

57.  This clause gives the IPC a delegated power to authorise an applicant to serve a notice on one of a limited number of persons having an interest in a piece of land, requiring the recipient to confirm details of people who have an interest in that land. If the recipient of the notice (without reasonable excuse) fails to comply with the information notice, or wilfully gives misleading information, he or she will be committing an offence, and liable to pay a fine up to level 5 on the standard scale.

58.  The aim of this clause is to allow the promoter to confirm details of the ownership of land which could be affected by its proposals. This is to enable the promoter to consult with such persons (under clause 41) and notify them directly when an application is made (under clause 54). When the proposals come under examination in front of the IPC, persons with an interest in such land would be automatically classed as "interested parties" for the purposes of Part 6 of this Bill.

59.  Given the importance of the information that will be sought by a notice of this type, it is considered essential for the requirement to be backed up by criminal sanction. The promoter would be responsible for bringing a prosecution in the event of a person failing to supply information, or giving false information.

60.  Ministers believe the power under this clause is of an administrative nature, and Parliamentary confirmation is not necessary.

Clause 51 - Rights of entry

Powers conferred on: Infrastructure     Planning Commission (and appropriate Minister in case of statutory undertakers' land)

  Powers exercised by:   authorisation to enter land

  Parliamentary procedure: none

61.  This clause gives the IPC a delegated power to authorise a person to enter a particular piece of land, in relation to which an application for development consent has been made, or is proposed to be made, in order to conduct surveys. In the case of land belonging to statutory undertakers, the appropriate Minister (i.e. Secretary of State or Welsh Minister) would also need to authorise the right of entry.

62.  It is an offence wilfully to obstruct an authorised person from exercising a right of entry, with a person guilty of the offence being liable to a fine not exceeding level 3 on the standard scale. The person obstructed from entering the land will be responsible for prosecuting this offence.

63.  The person entering land under this clause is liable to pay compensation for any damage caused in exercise of the right of entry.

64.  Where the land to be entered is occupied, at least 14 days' notice must be given of a person's intention to exercise a right to enter the land. A person whose land is being entered for the purposes of survey should therefore be fully aware of the nature of the application before any attempt to enter his or her land is made.

65.  This provision is equivalent to the provisions in section 324(b) of the Town and Country Planning Act 1990, which allow any person duly authorised in writing by the Secretary of State or by a local planning authority to enter any land for the purpose of surveying it in connection with an application for planning permission. [In section 324(b), this right of entry applies to any planning application "made in connection with that land or any other land", which is a wider power to that reproduced in this clause.]

66.  The provisions in section 324(b) of the Town and Country Planning Act do not require any Parliamentary confirmation, and Ministers do not believe that Parliamentary involvement is appropriate here either.

Part 6 - Deciding applications for orders granting development consent

Clause 54 - Notifying persons of accepted application

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

67.  Clause 54 gives the Secretary of State three delegated powers:

I.  Firstly, the Secretary of State is given the power to make a statutory instrument prescribing a list of persons whom a promoter of a nationally significant infrastructure project will be required to notify that it has submitted an application for development consent.

II.  Secondly, the Secretary of State is given the power to prescribe the form that the notice referred to in (i) must take; the information that must be contained in the notice, and the manner in which the notice must be served.

III.  Thirdly, the Secretary of State is given the power to prescribe requirements in relation to wider publicity for an application. This might include a requirement to publish an advertisement in a certain number of local and national newspapers, or to notify a range of potentially interested people in some other manner.

68.   Powers currently exist for the Secretary of State to prescribe the manner in which notice of applications for the various consents required under existing regimes must be made. Under existing legislation, the power to prescribe notification and publication arrangements operates under the negative resolution procedure. Ministers believe this is also appropriate for the matters to be prescribed by the Secretary of State under clause 54.

Clause 56 - Certifying compliance with section 54

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

69.  This clause requires the applicant to certify to the IPC that it has complied with the requirements in clause 54 on notifying persons that the IPC has accepted its application and will proceed to examination. If a person issues a certificate which he or she knows to contain false or misleading material, he or she is guilty of an offence, as is also the case where the person recklessly issues a certificate which contains false or misleading material.

70.  This clause gives the Secretary of State the ability to prescribe standards for how the applicant is to certify its compliance, including what form and manner certification is to take. Under existing legislation, the power to prescribe notification and publication arrangements operates under the negative resolution procedure. Ministers believe this is also appropriate for certification of compliance with notification requirements under this Bill.

Clause 57 - Notice of persons interested in land to which a compulsory acquisition request relates

Powers conferred on:     Secretary of State

Powers exercised by:     Regulations

Parliamentary procedure:   Negative Resolution

71.  Where an application that has been accepted by the Commission includes a request for authorisation of the compulsory acquisition of land, or of an interest in or right over land, clause 57 requires the applicant to provide the Commission with a notice including the names of any affected persons. The Secretary of State is given a delegated power to make regulations prescribing other information that must also be provided in the notice; and specifying the form and manner in which the information must be provided. The intention is to ensure that the Commission has sufficient information to notify those who could be affected by a compulsory acquisition request of the deadline by which they need to request a compulsory acquisition hearing (see clause 90). This power is to be exercised by negative resolution.

Clause 59 - Initial choice of Panel or single Commissioner

Powers conferred on:     Secretary of State

Powers exercised by:     guidance

Parliamentary procedure:   none

72.  This clause allows the Secretary of State to issue guidance for the Chair of the IPC as to what types of factors should weigh in a decision to appoint a full Panel to examine an application for development consent, or to appoint a single Commissioner to lead the examination into the application. References to this guidance can also be found in clause 60, referred to below, which is about cases where the Chair of the IPC decides to switch from a single Commissioner leading an examination to a full Panel. The guidance might include examples of cases where the Secretary of State believes only a single Commissioner is required to preside over cases, and others where a Panel would be more appropriate.

73.  Ministers believe the power under this clause is of an administrative nature, and Parliamentary confirmation is not necessary.

Clause 60 - Switching from single Commissioner to Panel

Powers conferred on:     Secretary of State

Powers exercised by:     guidance

Parliamentary procedure:   none

74.  This clause gives the Chair of the Commission the ability to decide that an application being examined by a single Commissioner should instead be handled by a Panel. In making such a decision, the Chair must have regard to guidance given by the Secretary of State as to which applications should be handled by a Panel, and which should be handled by a single Commissioner. In practice, this is likely to be the same guidance document as is mentioned in clause 59 , and the same considerations as mentioned above will apply.

Clause 65 & 79 - Panel member/Single Commissioner continuing though ceasing to be a Commissioner

Powers conferred on:     Secretary of State

  Powers exercised by:    regulations

  Parliamentary procedure:  negative resolution

75.  Given the nature of nationally significant infrastructure projects, the IPC's examination of a particular application for development consent may take place over an extended period, and in some cases a longer period than was originally predicted. There may be a situation whereby the term of office of one of the members of the Panel examining the application comes close to expiry, before the Panel can complete its determination. The Chair of the IPC might decide to replace the Commissioner whose term of office is expiring, and replace him or her with a new Panel member. However, given the familiarity of the original Commissioner with the technical documents and representations connected with the application, the Chair of the IPC might feel it is desirable for the original Commissioner to continue to serve on the Panel even though his or her term of office will shortly expire.

76.  These clauses give a Commissioner who is actively engaged on a Panel that is examining an application the ability to elect to continue on the Panel until the case is determined, even if this is after the official expiry of his or her term of office. The Commissioner would only be able to use this ability if he or she elects to do so prior to the term of office expiring, and does so in the prescribed form.

77.  The clauses give the Secretary of State the ability to set out a prescribed form by which Commissioners can elect to extend their term of office until a case on which they are Panel members is determined.

78.  Ministers believe the negative resolution procedure is appropriate for the power conferred by this clause.

Clause 85 - Examining authority to control examination of application

Powers conferred on:     Secretary of State/IPC

Powers exercised by:     guidance

Parliamentary procedure:   none

79.  This clause allows the Secretary of State to issue guidance to the Commission as to how a Panel comprised of one or more Commissioners should examine an application for development consent. Such guidance would largely focus on administrative matters, such as how best to handle an examination so as to proceed as efficiently as possible while still allowing interested parties to put their points across in an effective way.

80.  This clause also allows the IPC to supplement the Secretary of State's guidance to panels with in-house guidance on how best to examine an application.

81.  Ministers believe the power under this clause is of an administrative nature, and Parliamentary confirmation is not necessary.

Clause 95 - Procedural rules

Powers conferred on:     Lord Chancellor

Powers exercised by:     rules

Parliamentary procedure:   negative resolution

82.  This clause confirms that the Lord Chancellor may make procedural rules which will govern how the IPC should handle examinations of applications for development consent. These rules might in particular relate to how the IPC should handle written representations by parties, and the holding of oral hearings.

83.  The power for the Lord Chancellor to make such rules in relation to statutory tribunals is not new to this Bill, and the systems for Parliamentary scrutiny match those in other regimes.

Clause 96 - Timetable for examining, and deciding or reporting on, application

Powers conferred on: Infrastructure     Planning Commission

Powers exercised by:   administrative means

Parliamentary procedure: none

84.   This clause sets out in statute the timescales before which the IPC must complete its consideration of an application. The examination stage must be completed within 6 months of the preliminary hearing in relation to an application, with a further 3 months for the IPC to decide on the application, either making a determination (where a national policy statement is in force) or making a recommendation to the Secretary of State (where a national policy statement is not in force).

85.  This clause grants the chair of the IPC the ability to set a later date for one or both of the above timescales. This ability is most likely to be used where an application for development consent is particularly large and complex, and the examination stage would require more than six months.

86.  Where the Chair of the IPC chooses to exercise the ability to set a later timescale for examination and/or decision on an application, he will have to write to the Secretary of State to explain the reasons behind it. Furthermore, the particulars and reasons behind each exercise of an ability to extend timescales must be recorded in the IPC's annual report.

87.  Ministers believe there is a need to be able to extend the timescales on an exceptional basis, as an administrative matter. Subject to the safeguards against it being used excessively, Ministers do not believe that Parliamentary involvement is appropriate.

Clause 99 - Interpretation of "interested party" and "statutory party"

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

88.  This clause allows the Secretary of State to define in regulations who is to be a statutory party to an application. A statutory party is included in the definition of an 'interested party' in subsection (1) of this clause. A statutory party is a person, other than the applicant who will have a right to be heard during the examination of an application. This is likely to include persons who are statutory consultees before an application is made, or those who must be notified when an application is made. Examples of statutory parties could include persons who have a statutory role in management of the area around where the application is to be situated (eg Environment Agency).

89.  This clause also allows the Secretary of State to make regulations that prescribe the form and manner which representations to the Commission must take, in order for them to be classed as a "relevant representation". The Secretary of State may include in these regulations a prescribed set of matters that must be included in any "relevant representation". An example of such material might be that a person making a representation must include his or her contact details along with their submission.

90.  Ministers believe that regulations of this nature should be subject to Parliamentary scrutiny using the negative resolution procedure.

Clauses 101 &102 - Decisions of Panel and Council, or of Secretary of State

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

91.  This clause sets out the decision framework which will guide the decision-maker in determining an application. In particular, this requires that the decision-maker take account of national policy as set out in the national policy statement, as well as any local impact report submitted by a relevant local authority; together with other matters which are prescribed with relation to development of that description. The Secretary of State will set out by means of a statutory instrument such matters which must be addressed by the decision-maker in making a decision on a nationally significant infrastructure project. Ministers intend that the matters to be prescribed under this power will replicate the matters which are already considered in applications for consent under other statutory regimes. For example, Part 2 of the Food and Environmental Protection Act 1985 requires that certain environmental considerations are taken into account before a licence to deposit on the sea bed is granted.

92.  Ministers believe that a statutory instrument of this nature should be subject to Parliamentary scrutiny using the negative resolution procedure.

Clauses 106 to 109 & Schedule 3 - Intervention by Secretary of State

Powers conferred on:     Secretary of State, Attorney General & Lord Chancellor

Powers exercised by:     Administrative action and regulations

Parliamentary procedure:   none for administrative action, negative resolution for regulations

93.  These clauses together with Schedule 3 set out the procedure that will be followed in deciding an application for development consent for a NSIP, in cases where the Secretary of State has intervened, either because of changes in circumstances since a National Policy Statement was designated, or on the grounds of national security. In such cases, the Secretary of State is given the function of deciding the application, although he can direct the IPC to examine specific matters. The Secretary of State's examination of the application in such cases can take the form of a hearing, or written representations; and in national security cases, the Secretary of State is given a power to direct that specified evidence can be examined in private by persons of a specified description. In this case, paragraph 4 of Schedule 3 allows the Attorney General (or Secretary of State where the hearing takes place in Scotland) to appoint special representatives who would hear the evidence on behalf of interested parties These procedures are to protect sensitive evidence (similar provision is made under the TCPA 1990 in relation to planning inquiries where national security issues are raised).

94.  There is a delegated power for the Lord Chancellor to make rules regulating the procedure to be followed by the Secretary of State in connection with the examination of an application in a case in which the Secretary of State has intervened. This is to ensure fairness and consistency in the way in which such applications are dealt with.

95.  Ministers do not believe that it is appropriate that directions of this description made by the Secretary of State should be subject to Parliamentary approval. Nor is it considered necessary for the Attorney General's power to appoint a representative to be subject to any Parliamentary procedure. The delegated power given to the Lord Chancellor (Secretary of State in relation to Scotland) to make rules as to the procedure to be followed by the Secretary of State when examining an application is similar to that proposed under clause 92 (see above).

Clause 110 - Grant or refusal of development consent

Powers conferred on:     Secretary of State

Powers exercised by:     regulations

Parliamentary procedure:   negative resolution

96.  This clause allows the decision-maker to make a development consent order on terms different to those proposed in the application. Flexibility for the decision-maker to vary the terms of a development consent order beyond the draft that was originally applied for is necessary for two reasons. Firstly, it is important that promoters should be able to enter into a real dialogue with objectors both before and during the IPC's examination, and it must be possible that this dialogue could result in changes being made to the terms of the draft order, even after an application has formally been accepted by the IPC. Secondly, the decision-maker must have flexibility to make changes in the draft order before it, if it believes that a decision to approve could only be made on the basis of a project with revisions.

97.  At the same time, this clause gives a power to the Secretary of State to make regulations on the procedures to be followed whenever the decision-maker wishes to make changes to the terms of a draft order. This would ensure in particular that where the decision-maker wished to incorporate changes to the terms of a draft order, that this should be notified to the promoter and interested parties, and that the decision-maker must take into account any representations and objections made about its proposed changes.

98.  Ministers believe that regulations that set procedural rules such as this should be subject to Parliamentary approval through the negative resolution procedure.

Clause 111 Development for which development consent may be granted

Powers conferred on:     Secretary of State

Powers exercised by:     guidance

Parliamentary procedure:   none

99.   Clause 111 gives the Secretary of State a power to issue guidance about whether development can be classed as "associated development", for the purposes of the making of a development consent order. It may well be that the promoter of a nationally significant infrastructure project (such as an airport) may wish to include other associated works in an application to the IPC, such as works linking the NSIP and wider national networks, such as motorways, the electricity grid or the national rail network. This guidance would set out which works the Secretary of State considers could be included in an application for development consent.

100.  Ministers believe the power to make an order or to make guidance under this clause is of an administrative nature, and Parliamentary confirmation is not necessary.

Clause 115 & Schedule 4 - Correction of errors in development consent decisions

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   none

101.  Schedule 4 sets out the procedures by which the decision-maker may correct errors in development consent decisions, provided that the conditions in the Schedule are met. Paragraph 2(4) gives the Secretary of State the power to specify persons or descriptions of person who must be sent a correction notice, where the decision-maker has corrected an error. This power would be used in the same way as similar powers under Part 5, which specify who must be notified of applications and who should receive copies of the final decision-maker's decision. In line with the procedures under Part 5 and other existing legislation, Ministers believe it is appropriate that this should be subject to Parliamentary approval under the negative resolution procedure.

Part 7 - Development consent orders

Clause 116 and Schedule 5 - What may be included in an order granting development consent

Powers conferred on:     Infrastructure Planning Commission/Secretary of State

Powers exercised by:     order granting development consent

Parliamentary procedure:   none

102.  This clause stands at the heart of the reforms in this Bill, in that it allows the IPC to issue development consents that can grant the full range of consents, authorisations and powers that might be needed in order to allow a nationally significant infrastructure project to progress. We recognise that in delegating the power to the IPC, an independent body, to issue development consents, there needs to be a range of safeguards, to ensure proper accountability. The overview section at the beginning of this delegated powers memorandum sets out the intention of Ministers in ensuring that development consents are made in the form of orders, and how orders granting development consents would fit in the context of other consent regimes. The Bill contains a number of limitations on the IPC's ability to make orders granting development consent.

103.  Clause 116, and Schedule 5 which set out the matters which can be included in an order granting development consent, are very closely modelled on Schedule 1 of the Transport and Works Act 1992.

Requirements attached to an order granting development consent

104.  Clause 116(1) allows the IPC to grant development consent which imposes requirements on the beneficiary of the order. This is to mirror the ability of the Secretary of State or local planning authority in the case of an application for planning permission under sections 70(1), 72, 73, 73A, 76A (10) & 77(4) of the Town and Country Planning Act 1990 to grant planning permission, refuse planning permission or grant planning permission subject to such condition as it sees fit. As with TCPA, clause 116(1) is intended to give the IPC a wide discretion deciding which requirements it may see fit to impose - but it is intended that the scope of this discretion will be subject to the large body of case law on the issue of what conditions can be attached to grants of planning permission. In particular, Ministers expect that requirements imposed as part of an order granting development consent would have to meet the usual six-fold test for conditions on planning permissions, which is that they must be necessary; relevant to planning; relevant to the development to be permitted; enforceable: precise; and reasonable in all other respects.

105.  As an example of the types of requirements that might be imposed, the following are examples of commonly imposed conditions on planning permissions:

• Where planning permission is granted for the erection of a building, a condition may reserve detailed matters for the local planning authorities' subsequent approval, for example, the siting, design and external appearance of the buildings, access and landscaping.
• Typically planning authorities will also include a number of other conditions, for example, conditions may be imposed limiting the environmental impact of the development.
• Some of these conditions will need to be complied with before any work starts on site; others will take effect once the development is occupied, or later.

106.  Ministers expect that where the IPC has examined an application, but decides that it should only go ahead if further mitigation measures are put in place to reduce adverse local impacts, it should be able to make these mitigation measures a requirement of the order granting development consent.

107.  In addition to these types of requirements, the other principal type of requirement might be a requirement that incorporates a planning agreement between the promoter and a third party as an integral part of the development consent itself. In the case of the Transport and Works Act orders, a series of agreements with third parties such as statutory undertakers are habitually included as schedules to the main order. Ministers wish that agreements between promoters and third parties will be treated in the same way in orders granting development consents. Agreements between promoters and local authorities currently carried out under s.106 of the Town and Country Planning Act, and between promoters and the Highways Agency under s.278 of the Highways Act, will form part of the order granting development consent in this way.

108.  At present, none of the requirements an authority may wish to impose on a planning permission receive any Parliamentary scrutiny, and Ministers do not believe that Parliamentary scrutiny is appropriate for requirements made under this Bill.

Subjects which may be provided for in an order granting development consent

109.  The list of issues which may be provided for in an order granting development consent is set out in Part 1 of Schedule 5. This is a wide list that is modelled on Schedule 1 of the Transport and Works Act 1992. Subsequent clauses give further clarification as to the limitations relating to individual items in this list. The powers that are exercisable in this list are currently vested in the Secretary of State by means of one or several of the consent regimes that the single consent regime will replace, and there is scope for Parliamentary involvement only in a very limited number of cases.

Compulsory acquisition of land and rights over land

110.  An order granting development consent will be able to authorise compulsory acquisition of land needed in order to complete the nationally significant infrastructure project. This includes the ability to acquire rights over land compulsorily and to amend or abrogate agreements relating to the land. Without the ability to compulsorily acquire land, many nationally significant infrastructure projects simply could not proceed, as has been recognised by Ministers for many years.

111.  At present, the acquisition of compulsory purchase powers is functionally separate from the grant of planning permission. Compulsory purchase orders are currently confirmed by the Minister, by means of one of three models. The procedures under the Acquisition of Land Act 1981 are the most common, and consist of an acquiring authority making a compulsory purchase order, which is then submitted to the relevant Secretary of State for confirmation - who may call a separate inquiry to examine this matter. Under the model in the Transport and Works Act 1992, the promoter of project submits a draft order that already contains provisions authorising the compulsory purchase of land directly to the Secretary of State for confirmation - and again an inquiry can be called to examine this matter. If the Secretary of State himself is proposing to acquire land, he would publish a draft order authorising compulsory purchase of land, and if objections are received an inquiry would be held before the Secretary of State chooses to confirm the order or not. In all cases, the final determination of compulsory purchase orders rests with Ministers, and there is only Parliamentary involvement in the matter where the compulsory purchase affects specific categories of land which benefit from special protection.

112.  Ministers wish to transfer their powers to the IPC to make final determination of compulsory purchase orders in the case of nationally significant infrastructure projects for which the IPC is the decision maker. Under the single consents regime, a single order that grants development consent will also be able to authorise the compulsory purchase of land that would be needed to achieve the development. Although this means that there will be no need for a separate process, the procedures which will apply to compulsory purchase of land required as part of a NSIP will be based on current procedures as far as is practicably possible, and in particular to follow the procedural model found in the Transport and Works Act 1992. This is to say that the promoter of a NSIP will include any provisions for acquiring land compulsorily in the draft order he makes when applying for development consent. This will then be considered by the IPC together with the applications for all the other consents submitted to it in respect of the NSIP in question. The IPC will be required to hold a specific hearing to look into any parts of an application that would entail compulsory acquisition of land, where this is requested by an affected person. The IPC will only be able to authorise the compulsory purchase of land, if it determines that there is a compelling case in the public interest for the land to be acquired compulsorily. Where such a case exists, it will make an order based on the draft order submitted by the applicant. Where the Secretary of State is the decision maker in relation to an NSIP, it will be for the Secretary of State to authorise the compulsory purchase of land in connection with that NSIP.

113.  The Bill sets out several further safeguards and restrictions as to when orders granted under clause 116 and Schedule 5 can authorise compulsory acquisition of land, and these can be found in the subsequent clauses of Part 7, which deal with special categories of land. Clause 118 confirms that the land in question must have been demonstrated to the IPC's/Secretary of State's satisfaction to be required for the development to proceed, and that there must be a compelling case in the public interest for the land to be acquired compulsorily. The national policy statement is to be the primary means of judging what is and is not in the public interest, but the promoter will still need to demonstrate this in respect of his particular proposals. Clauses 123 and 124 are akin to sections 16 (statutory undertakers' land excluded from compulsory purchase) and 17 (local authority and statutory undertakers' land) of the Acquisition of Land Act 1981, and impose additional safeguards where the IPC/Secretary of State intend to authorise compulsory acquisition of land belonging to statutory undertakers or local authorities. Clause 124 imposes a requirement that an order authorising compulsory acquisition of these two types of land is subject to special parliamentary procedure. Likewise, land held by the National Trust will not be able to be compulsorily acquired except through special parliamentary procedure (clause 126), and the IPC will not be able to consent to compulsory acquisition of commons or open spaces unless substitute land is to be made available to replace it, that the Secretary of State has certified to be of equal value (clauses 127 and 128). Before the Secretary of State can issue a certificate, he is required to carry out further consultation, including holding an inquiry, if necessary.

114.  The IPC will not have a role in deciding the levels of compensation that will be available to a person who has land or rights over land compulsorily acquired. This will be a matter for the Lands Tribunal, as set out in the Acquisition of Land Act 1981. This ties in with the provisions of clauses 92(8) and 103(1)(c) which state that representations about the issue of compensation are not to be relevant for the IPC hearings. It should be noted however, that the provisions of Section 4(2) of Acquisition of Land Act 1981 will be followed in all cases of compulsory acquisition of land authorised by the IPC, which is to say that the Lands Tribunal will not take into account any interest in land, or any enhancement of the value of any interest in land, which it believes was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

115.  Ministers consider it necessary, for the proper working of the single consent regime, that an order granting development consent should also be able to deal with sale or change of use of land currently designated as Green Belt. To reflect the special status of such land, clause 142 places special notification requirements in cases where the IPC/Secretary of State intends to make an order which would alter Green Belt protection. At the moment, the Secretary of State is able to authorise the sale, exchange or appropriation of Green Belt land, subject to notification requirements. This Bill would grant the IPC the same abilities in the case of nationally significant infrastructure projects.

Civil engineering works

116.  An order granting development consent will be able to allow a promoter to carry out necessary works for the completion of a nationally significant infrastructure project, including such civil engineering works as are applied for. This could include the powers the Secretary of State has in order to conduct works to a highway or proposed highway.

117.  As an example of how these powers may be used, a highway project may well require civil engineering works that range from: the taking of soil surveys in areas to be tunnelled; the removal and re-siting of apparatus (such as an electricity pylon which would be inside the limits of deviation); the diversion of a navigable watercourse so as to construct a highway bridge over it; the stopping up and diversion of highways connecting to the project in order to construct new interchanges; and finally the designation of the completed project as a trunk road and the Secretary of State as highway authority for the purposes of the Highways Act.

118.  The IPC will have the ability to grant an order that covers all of these aspects, where it judges that they are necessary for the purposes of the project. In most cases of nationally significant infrastructure projects, the size of the project means that the promoter will propose a significant number of such civil engineering works, and will need to gain consent for all of these if a development consent granted by the IPC is to be effective in practice.

Miscellaneous and financial provisions

119.  Beyond the power to acquire land and to conduct civil engineering works, experience suggests that a series of other legal issues arise which can cause a nationally significant infrastructure project to be abandoned - and which are best considered together with the initial application for development consent. These include financial provisions, such as the financing mechanisms by which construction costs will be met. As an example, the River Tyne (Tunnels) Order (SI 2005/2222), which was made under the Transport and Works Act 1992, contained provisions allowing the promoter to charge tolls or fares on its users, and also allowing the promoter to enter into concession agreements and to lease or transfer the undertaking. Both of these elements needed to be incorporated into the legislative order, in order to give comfort to the financiers of the project.

120.  Ministers also believe from experience in the case of Transport and Works Act Order cases that an order granting development consent should be able to deal with payments that might be necessary in order to allow the development of a nationally significant infrastructure project to go ahead. The IPC will therefore be able to make such provision. An example of this might be a case where a planning agreement containing provisions for the promoter to pay a contribution to fund local amenities is necessary; or where an agreement containing provisions for a contribution to pay for any improvements to wider networks is necessary. This might be necessary in order to accommodate increased demand due to traffic to or from the new nationally significant infrastructure project.

121.  Experience from the Transport and Works Act also suggests that financiers of nationally significant infrastructure projects may require clarity at the development stage on the future ownership of undertakings, and there have been several examples of orders which have dealt with the transfer, leasing, suspension, discontinuance and revival of undertakings, including provisions on the transfer of property, assets and functions. Ministers believe that these experiences have demonstrated that the single consents regime must also have power to provide for these types of measures.

Alterations of existing legislative provision

122.  One of the most difficult obstacles facing promoters of several types of nationally significant infrastructure project is the fact that there are often existing statutory provisions regulating the existing infrastructure which needs to be upgraded or improved. In particular, railway infrastructure is frequently protected by one or more Private Acts of Parliament which gave the original promoters of the railway the ability to construct it in the first place. Such legislation frequently mean that no alterations can be made to railway infrastructure - and hence that no further projects can be built on such land.

123.  The need for transport projects to disapply existing statutory provision was one of Parliament's reasons for granting the Secretary of State extensive powers in section 5 of the Transport and Works Act 1992. This includes the ability for the Secretary of State, when making an order that grants authorisations and planning permissions for a transport system, to "apply, modify or exclude any statutory provision which relates to any matter as to which an order could be made" under that Act. The Transport and Works Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appears to him to be expedient in connection with an order.

124.  Ministers believe that a similar power in the case of orders granting development consent for nationally significant infrastructure projects is essential. The provisions in clause 116 therefore include those provisions that currently exist in section 5 of the Transport and Works Act 1992, and allow the IPC/Secretary of State to make orders that amend or exclude statutory provisions, where these are necessary in order to allow an application it has approved to go ahead.

125.  Given that under the single consent regime for NSIPs, this power is capable of being exercised by an independent body, Ministers recognise the need for safeguards on this power. The clause is very tightly worded, so as only to allow the IPC to amend or exclude statutory provision where this is strictly necessary for an NSIP to proceed. Furthermore, the form of the order itself is intended to be based on model provisions that are issued by the Secretary of State and scrutinised by Parliament, which sets a template for what the Secretary of State considers an acceptable use of such powers.

126.  Ministers do not believe it is appropriate for the IPC to use legislative powers in such a way as to lead to any person being guilty of an offence. Clause 116 therefore specifies that no order granting development consent will be able to include provision making byelaws or creating criminal offences, conferring powers to make byelaws or create criminal offences, or changing an existing power to make byelaws or create criminal offences.

127.  As an additional safeguard, clause 117 requires that where the IPC proposes to make an order that would include a provision to amend or exclude existing legislative provisions, it must clear a draft of this order with the Secretary of State, who would review the draft order. Where the order would make changes that the Secretary of State believes would contravene Community law or human rights, he may direct the IPC to make changes to the draft order.

Clause 120 - Guidance about authorisation of compulsory acquisition

Powers conferred on:     Secretary of State

Powers exercised by:     guidance

Parliamentary procedure:   none

128.  This clause allows the Secretary of State to issue guidance to the IPC about how it should exercise its powers to include provisions on compulsory purchase of land in an order granting development consent under clause 116.

129.  Such guidance might include guidance on the circumstances in which compulsory acquisition of land is appropriate, the procedures which the IPC should adopt in authorising compulsory acquisition of land, and any special treatment that could be required on special categories of land. An example might be about what the IPC should include regarding the treatment of burial grounds and consecrated land in an order authorising the compulsory purchase of such land - by requiring that treatment similar to that in sections 238 to 240 of the Town and Country Planning Act 1990.

Clause 130 - Notice of authorisation of compulsory acquisition

Powers conferred on: Secretary of State

Powers exercised by: regulations

Parliamentary procedure: negative resolution

130.  This clause allows the Secretary of State to prescribe the form of a notice of compulsory acquisition. This power is equivalent to a notice of confirmation by an acquiring authority of a compulsory purchase order, which form is prescribed by the Compulsory Purchase of Land (Prescribed Forms) (Ministers) Regulations 2004 (SI No.2595). In a similar manner, Ministers believe these regulations should be subject to Parliamentary approval through the negative resolution procedure.

Clause 140 - Harbours

Powers conferred on:     IPC/Secretary of State

Powers exercised by:     order

Parliamentary procedure:   none

131.  One of the things that the IPC is able to authorise in a development consent order is the creation of a new Harbour Authority. It can also amend the powers and duties of an existing Harbour Authority. Clause 140 places limitations on the exercise of this power to ensure that the IPC's powers in this regard are only exercised when the development includes the construction or alteration of Harbour facilities. This is to ensure that the delegated power to authorise the creation of a new Harbour Authority, or to amend the powers and duties of an existing Harbour Authority are used appropriately. This clause also sets out the other provisions specific to Harbours that may be made in a development consent order. These are generally those which could be made in a Harbour Revision Order under section 14 of the Harbours Act 1964, but subject to the restrictions about what can be included in a development consent order, as set out above.

Clauses 143 & 144 Deemed consent under section 34 of the Coast Protection Act 1949 and deemed licence under Part 2 of the Food and Environmental Protection Act 1985

Power conferred on:     IPC/Secretary of State

Power exercised by:     order

Parliamentary procedure:   None

132.  Rather than disapplying the provisions of the Coast Protection Act 1949 and the Food and Environmental Protection Act 1985, these clauses permit the IPC or Secretary of State to grant a deemed consent under the 1949 Act, or a deemed licence under the 1985 Act, where necessary in connection with an application for development consent for an NSIP involving works on the sea bed. The reason for the different approach taken here is that the CPA and FEPA have unique enforcement regimes, which it is desired to retain. Once a deemed consent or licence has been granted, the enforcement mechanisms for that consent or licence, are those which would apply under the CPA or FEPA.

Clause 145 - Removal of consent requirements

Power conferred on:     Secretary of State

Power exercised by:     Regulations

Parliamentary procedure:   negative resolution

133.  This clause allows the Secretary of State to make regulations specifying certain consents that cannot be granted by the IPC as part of a development consent order, unless the person or body who would normally be responsible for dealing with the matter agrees. This is to ensure that the IPC does not breach the devolution settlement, and that operational consents e.g. those normally dealt with by the Environment Agency, are protected. The regulations will be the subject of full consultation before they are made, and are to be the subject of a negative resolution.

Clause 147 - Duration of development consent order

Powers conferred on:     Secretary of State/Infrastructure Planning Commission

  Powers exercised by:     regulations/order

  Parliamentary procedure:   negative resolution/none

134.  Clause 147 sets out that development contained in an order granting development consent should begin before the prescribed period elapses. The Secretary of State would have the power to make regulations which set this prescribed period. Ministers intend that this prescribed period would be identical to the prescribed periods set out in subordinate legislation under s.91 of the Town and Country Planning Act 1990. Ministers believe that it would be appropriate for regulations that set out a prescribed period to be subject to Parliamentary scrutiny through the negative resolution procedure.

135.  This clause also gives the decision-maker the ability to make an order which specifies a period by which development must begin, which is different to the prescribed period. This power is equivalent to the power for the decision maker in s.91 of the Town and Country Planning Act 1990 to set a different period by which development must begin. Ministers do not believe that Parliamentary involvement is appropriate in individual decisions to grant development consent.

Clause 148 - When development begins

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   negative resolution

136.  Clause 148 sets out that development is taken to begin for the purposes of the Bill when any material operation comprised in the development is carried out. The Secretary of State can however make regulations prescribing operations that will not be taken to commence development. An example of this could include the pegging out of land in preparation for the beginning of development works.

137.  Ministers believe that it would be appropriate for these regulations to receive Parliamentary approval through the negative resolution procedure.

Part 8 - Enforcement

Clauses 153 and 154 - New offences: development without or in breach of development consent

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   affirmative resolution

138.  Clause 153 creates a new offence, that is committed if a person carries out or causes development to be carried out for which development consent is required, at a time when no development consent is in force in respect of the development. Clause 154 creates a similar new offence, where a person carries out or causes to be carried out development for which development consent is required in breach of the terms of the development consent order. There are identical penalties for both offences.

139.  The levels of penalty that are envisaged are above the standard rate. This is because Ministers believe the offence meets the criteria for offences that justify "exceptional summary maxima". These are that the offence is serious enough to justify a penalty above the normal statutory maximum; the matters involved should be susceptible to fairly easy proof; the offence would also be lucrative, either because it will give rise to large profits or because it will result in significant savings; and the offence is likely to be committed by companies or others with considerable resources.

140.  Subsection (3) of clause 153 and subsection (5) of clause 154 give the Secretary of State the ability to amend the levels of penalties. As the penalties are not expressed as levels on the standard scale, a power is needed to allow the size of the penalties to be raised periodically, in order to keep in line with inflation.

141.  Ministers believe that given the nature of this power, it is appropriate that any amendment to levels of penalty should be approved through an affirmative resolution in Parliament.

Clause 165 - Isles of Scilly

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   negative resolution

142.  This clause allows the Secretary of State to make an order with respect to the Isles of Scilly. Such an order would provide that the Council of the Isles of Scilly could carry out any of the functions that will be exercised by local planning authorities in enforcing the offences under this Bill of carrying out development where no development consent exists (see clause 153) or in breach of the terms of the development consent (see clause 154).

143.  There are several precedents for provisions extending to the Council of the Isles of Scilly the powers of local planning authorities, such as section 319 of the Town and Country Planning Act 1990. As with these precedents, Ministers believe that such an order should be made through the negative resolution procedure in Parliament.

Part 9 - Changes to existing planning regimes

Clause 168- Blighted land: England and Wales &169 Blighted land: Scotland

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   none

144.  The purpose of clause 168 is to allow owner occupiers adversely affected by a National Policy Statement to have the benefit of existing statutory provisions relating to blight. Clause 169 has the same effect for Scotland. Under these provisions, where a NPS does not name a statutory undertaker or undertakers as being responsible for carrying out an NSIP, the Secretary of State is responsible for the blight. Accordingly, the Secretary of State is given a power to compulsorily acquire any interest in land pursuant to a blight notice arising from the NPS. The Secretary of State has similar powers in relation to other statutory regimes concerning blight. This is an administrative power. It is exercised in accordance with procedural rules made under the Acquisition of Land Act 1981

Clause 177: Determination of planning applications by officers

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:   negative resolution

145.  This clause inserts new sections 75A, 75B, 75C, 75D and 75ZA into the Town and Country Planning Act 1990 (1990 Act). It introduces a requirement for local planning authorities to make arrangements for certain planning applications to be determined by officers of the authority. For these applications, it establishes a right of review of the officer's decision by the local planning authority and restricts the right of appeal to the Secretary of State under section 78 of the 1990 Act.

146.  Under subsection (1) of new section 75A, local planning authorities must specify descriptions of applications which are to be reviewable by the local authority following determination by an officer, and must make arrangements under section 101 of the Local Government Act 1972 (1972 Act) for such planning applications to be determined by officers. Subsection (4) provides for regulations to make provision about the specification of descriptions of such applications and the making of such arrangements under section 101. In particular, regulations may specify descriptions of planning applications which must and must not be subject to arrangements made under subsection (1) and may make provision about the officers who are to determine applications.

147.  We consider that such provisions are too detailed to include on the face of the Bill. We also believe it important to ensure flexibility in defining the range of applications which will be subject to the procedure introduced by this clause and in the procedures to be followed, since in the light of experience these may need to be refined.

148.  Section 75B allows regulations to make provision about the determination of an application by an officer acting under arrangements made pursuant to section 75A. In particular, under subsection (2), regulations may disapply or modify existing provisions of or made under the 1990 Act. We consider it more appropriate to leave the detail of the procedure to be followed on an application for planning permission to regulations. This is the approach adopted elsewhere in the 1990 Act (see for example section 74 of the 1990 Act and the Town and Country Planning (General Development Procedure) Order 1995.

149.  Section 75C provides for a review by the local planning authority of an application which has been determined by an officer under section 75A. It applies where the officer has either refused the application or granted it subject to conditions. Under subsections (3) and (4), regulations may make provision about reviews including, in particular, matters relating to procedure, oral representations, documents, matters that may be raised on a review, requiring a local planning authority to have regard to the development plan, the time period for completing a review, and the form of decision. We consider that such provisions are too detailed to include on the face of the Bill and are more appropriately left to regulations.

150.  Section 75D caters for circumstances where the local planning authority has failed to give notice of a decision on an application to which arrangements under section 75A apply. In such circumstances the local planning authority must determine the application if asked to do so by the applicant if the request is made in the prescribed form and before the end of the prescribed period. Subsection (5) allows regulations to make provision about the determination of an application by a local planning authority acting under this section. The purpose of subsection (6) is to allow those regulations to disapply or modify provisions of or made under the 1990 Act in relation to such an application. This is a similar power to that in section 75B and we consider that the same justification applies.

151.  All regulations made under powers conferred by this clause will be subject to the negative resolution procedure. We consider that this is an appropriate level of Parliamentary scrutiny given the subject matter of the clause.

Clause 178: Determination of applications for certificates of lawful use or development by officers

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:   negative resolution

152.  This clause inserts new sections 193A, 193B, 193C, 195A into the Town and Country Planning Act 1990 (TCPA 1990). It applies similar provisions to those in clause 177 to applications for certificates of lawful use or development. The delegated powers conferred by this clause are equivalent to those conferred by clause 177 and we consider that the justification for their use and the parliamentary procedure adopted is the same.

Clause 180: Determination of listed building applications

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:    negative resolution

153.  This clause inserts new sections 19A, 19B, 19C, 19D and 20ZA into the Planning (Listed Buildings and Conservation Areas) Act 1990 (Listed Buildings Act). It applies similar provisions to those in clause 177 to listed building applications. The delegated powers conferred by this clause are equivalent to those conferred by clause 177 and we consider that the justification for their use and the parliamentary procedure adopted is the same.

Clause 183: Removal of right to compensation where notice given of withdrawal of planning permission

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:   negative resolution

154.  Clause 183 inserts a new subsection (3B) into section 108 of the 1990 Act. The effect of new subsection (3B) is that there will be no entitlement to compensation where not less than 12 months or more than the prescribed period prior to planning permission granted by development order or local development order being withdrawn, notice of the intention to do so was published in the prescribed manner. If development is started before the notice is published then compensation will be available unless the order in question contains provision permitting the completion of development. We consider the manner of publication and the maximum notification period to be too detailed to include on the face of the Bill. Regulations made under subsection (3B) will be subject to the negative resolution procedure. We consider that this is an appropriate level of Parliamentary scrutiny given the subject matter.

Clause 186: Tree Preservation Orders

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:   negative resolution

155.  Clause 186 amends provisions in Chapter 1 of Part 8 of the 1990 Act on Tree Preservation Orders (TPOs) and inserts new sections 202A-202G into the 1990 Act. Under the current regime a TPO is required to be in, or substantially in the form of the model order in the Town and Country Planning (Trees) Regulations 1999 (SI 1999/1892) ("the 1999 Regulations"). The model order also sets out detailed procedures and as each TPO is stand alone, existing TPOs are unaffected by any subsequent changes to the governing regulations. The purpose of the amendments is to enable a more simplified model TPO to be produced and to transfer the procedural detail to regulations.

156.  New section 202A allows the Secretary of State (or, in relation to Wales, the Welsh Ministers) to make provision in connection with tree preservation orders. New sections 202B-202F specify what those regulations may contain in relation to the making of TPOs, prohibited activities, consent for prohibited activities, compensation and registers. We consider that detailed provision on these matters is appropriate for secondary legislation. This accords with the current position where provision on these matters is left to the model TPO specified in the 1999 Regulations.

157.  Regulations made under section 202A will be subject to the negative resolution procedure (by way of section 333(3) of the 1990 Act). We consider that this is an appropriate level of Parliamentary scrutiny given the subject matter. It is also the procedure used for regulations made under the existing section 199(2) of the 1990 Act.

Clause 195: Powers of the National Assembly of Wales

Powers conferred on:     Welsh Ministers

Powers exercised by:     order

Parliamentary procedure:    n/a (affirmative resolution in the National Assembly of Wales

158.  This clause gives the Welsh Ministers the power to amend Schedule 4 to the Welsh Development Agency Act 1975, to authorise the Welsh Ministers to override easements and other rights restricting the use of land which they have acquired under that Act. Together with clause 196, it will enable the Welsh Ministers to make reforms, equivalent to those made in relation to England by clause 188(1) and Schedule 9, to all the relevant statutory powers in Wales.

159.  Clause 188(4)(b) provides that the power includes power to make "incidental, consequential, supplementary, transitional or transitory provision or savings". Clause 188(5) provides that no order may be made unless a draft of the instrument containing the order has been laid before, and approved by resolution of, the National Assembly for Wales. This is considered the appropriate level of Assembly scrutiny given that an order made under these provisions would amend primary legislation

Clause 190: Determination of procedure for certain proceedings

Power conferred on:     Secretary of State

Power exercised by:     order

Parliamentary procedure:   negative resolution

160.  This clause inserts new sections into the 1990 Act, the Listed Buildings Act and the Planning (Hazardous Substances) Act 1990 (Hazardous Substances Act). Its purpose is to require the Secretary of State to determine the procedure by which certain applications and appeals made under those Acts should be considered. New sections 319A(3) of the 1990 Act, 88D(3) of the Listed Buildings Act and 21A(3) of the Hazardous Substances Act provide that the Secretary of State must make the determination before the end of the prescribed period beginning with the day on which the Secretary of State receives notice of the appeal. We consider it appropriate for regulations to prescribe the time period for making a determination as in the light of experience the period may need to be revised. Regulations made under powers conferred by this clause will be subject to the negative resolution procedure. We consider that this is an appropriate level of Parliamentary scrutiny given the subject matter.

161.  New section 319A (9) allows the Secretary of State, by Order, to amend subsection (7) to add or remove proceedings from the list of those to which the power of the Secretary of State to make a determination as to procedure applies. New sections 88D (8) of the Listed Buildings Act and 21A (8) of the Hazardous Substance Act make similar provision for listed buildings and hazardous substances applications and appeals respectively. We consider it appropriate to provide for amendment by Order as we may wish to add other proceedings under the Planning Acts to those for which the Secretary of State may make a determination as to procedure in the light of experience with the operation of these provisions.

162.  An Order made under these powers will be subject to the affirmative resolution procedure (see paragraphs 13(3) and 23(3) of Schedule 10 which amend section 333 of the 1990 Act and section 93 of the Listed Buildings Act respectively, and new s21A(11) of the Hazardous Substances Act). We consider that this is the appropriate level of Parliamentary scrutiny given that an Order made under these provisions would amend primary legislation.

Clause 191 and Schedule 11: Appeals: miscellaneous amendments

Power conferred on:     Secretary of State/Welsh Ministers

Power exercised by:     order

Parliamentary procedure:   negative resolution

163.  Paragraphs 2-4 of Schedule 11 amend sections 78, 195 and 208 of the 1990 Act respectively to provide that a notice of an appeal must be accompanied by such information as may be prescribed by development order. Paragraphs 5 and 6 amend section 21 of the Listed Buildings Act and section 21 of the Hazardous Substances Act respectively to make similar provision. Paragraph 3 further provides that notice of an appeal under section 195 of the 1990 Act (appeal against refusal or failure to give a decision on an application for a lawful development certificate) shall be served within such time and in such manner as may be prescribed by development order.

164.  We consider that such procedural matters are too detailed to be included on the face of the Bill. Such matters are dealt with in secondary legislation throughout the planning Acts. An order made under sections 78, 195 and 208 of the 1990 Act, and regulations made under section 21 of the Listed Buildings Act and section 21 of the Hazardous Substance Act, will be subject to the negative resolution procedure. This is the existing procedure for such orders and regulations made under the planning Acts (see sections 333(5) of the 1990 Act, 93(3) of the Listed Buildings Act and 40(3) of the Hazardous Substances Act).

Clause 193: Fees for planning applications

Power conferred on:     Secretary of State/Welsh Ministers

Power exercised by:     regulations

Parliamentary procedure:    affirmative resolution

165.  This clause substitutes section 303 of the 1990 Act. The new elements are in subsections (2) and (4) of the substituted section. Subsection (2) enables the appropriate authority (being the Secretary of State in England or the Welsh Ministers in Wales) to make provision in regulations for the whole of the deemed application fee which is payable when an applicant appeals under section 177(5) of the 1990 Act against an enforcement notice to be paid to either the local planning authority, the appropriate authority, or both the local planning authority and the appropriate authority. Subsection (4) of the substituted section 303 enables the appropriate authority to make provision in regulations for the payment of a fee to the appropriate authority in respect of an application under section 293A (Urgent Crown Development).

166.  We consider that provision on fees for these types of application is too detailed to include on the face of the Bill. The level of fee may also need to be reassessed from time to time. This approach is in line with the power to make provision on fees in the current section 303. Subsection (6)(a) provides that regulations may contain incidental, supplementary, consequential, transitional and transitory provision and savings. Subsection (6)(b) provides that regulations may amend, repeal or revoke any provision made by or under the 1990 Act or by any other Act. This power to amend primary legislation is included because of subsection (5)(f) which is intended to enable the Secretary of State to provide in the regulations for an application not to be validly made unless the correct fee has been paid in accordance with the regulations. This may require the regulations to amend the primary legislation for the application procedure in question.

167.  Subsection (8) provides that regulations under this clause are subject to the affirmative procedure. This accords with the procedure applied for fees regulations made under the previous version of section 303.

Clause 194: Fees for appeals

Power conferred on:     Secretary of State/Welsh Ministers

Power exercised by:     regulations

Parliamentary procedure:   affirmative resolution

168.  This clause inserts a new section 303ZA into the 1990 Act which allows the Secretary of State to make provision, by way of regulations, for the payment of a fee for appeals made under the 1990 Act and the Listed Buildings Act. The regulations may set out, in particular, when the fee should be paid, how the fee should be calculated and by whom, the circumstances under which an appeal fee may be refunded, and the effect of either paying or not paying the fee.

169.  We consider that fees provision on appeals is too detailed to include on the face of the Bill. The level of fee may also need to be reassessed from time to time. This approach is in line with the power to make provision on fees for planning applications in section 303 of the 1990 Act. Subsection (4)(a) provides that regulations may contain incidental, supplementary, consequential, transitional and transitory provision and savings. Subsection (4)(b) provides that regulations may amend, repeal or revoke any provision made by or under the 1990 Act or by any other Act. This power to amend primary legislation is included because of subsection (2)(e) which is intended to enable the Secretary of State to provide in the regulations for an appeal not to be validly made unless the correct fee has been paid in accordance with the regulations. This may require the regulations to amend the primary legislation for the appeal procedure in question.

170.  Subsection (6) provides that regulations made under this clause are subject to the affirmative resolution procedure. This accords with the procedure applied for fees regulations made under section 303 of the 1990 Act.

Part 10 - Wales

Clause 195: Powers of the National Assembly for Wales

Powers conferred on:     National Assembly for Wales

Powers exercised by:     Assembly Measure

Parliamentary procedure:   n/a (subject to Assembly legislative procedure)

171.  This clause confers legislative competence on the National Assembly for Wales, by adding three matters to Field 18 (town and country planning) in Part 1 of Schedule 5 to the Government of Wales Act 2006. The National Assembly for Wales will have the power to pass Assembly Measures in relation to those matters.

172.  This clause will give the National Assembly for Wales competence in relation to plans made by the Welsh Ministers and local planning authorities in relation to the development and use of land in Wales (that is, currently the Wales Spatial Plan and local development plans). However, this does not include making provision about the status of those plans in relation to development consents for nationally significant infrastructure projects. It also confers competence in relation to the review by local planning authorities of matters concerning their area's development.

173.  This clause will enable the Welsh Assembly Government to bring forward proposals for legislation which are based on Welsh priorities and timescales. The Welsh Assembly Government would consult upon detailed proposals for legislative change before introducing any proposed Assembly Measure.

174.  An Assembly Measure may include any provision that could be made by an Act of Parliament, within the limits on the Assembly's legislative competence set out in section 94 of, and Schedule 5 to, the 2006 Act. An Assembly Measure will be scrutinised by the Assembly in accordance with sections 97 and 98 of the 2006 Act. In particular, the 2006 Act specifies that the Assembly's Standing Orders must include provision for a debate and vote on the general principles of a proposed Assembly Measure, on the details of the proposal and for there to be a final stage where the proposal can be passed or rejected.

Clause 196: Power to make provision in relation to Wales

Powers conferred on:     Welsh Ministers; Secretary of State

Powers exercised by:     order

Parliamentary procedure:   affirmative procedure in the National Assembly for Wales; affirmative procedure in Parliament

175.  Clause 196(1) gives the Welsh Ministers the power by order to make provision in relation to Wales corresponding to a number of miscellaneous reforms to the planning regime which are included in Part 9 of the Bill on an England only basis.

176.  The clause would allow Welsh Ministers to apply the following reforms to Wales:

• Amended power to correct minor errors in appeal decision notices (clause 174).
• Introduction of Local Member Review Bodies to determine appeals arising from minor applications for planning permission, certificates of lawfulness and listed building consent (clauses 177 to 180).
• Removal of rights to compensation where notice is given of the withdrawal of permitted development rights (clause 183).
• New Local Planning Authority power to make non-material changes to a planning permission (clause 184).
• Amended power to override easements and other rights to facilitate regeneration and similar projects (clause 188).
• Provision to facilitate determination of applications and appeals by statutory undertakers by Planning Inspectors (clause 189).
• New Secretary of State power to decide the determination procedure for specified planning and listed building applications and appeals (clause 190).
• Amended power to decline to determine limited planning applications (clause 191 and Schedule 7).

177.  This power enables the Welsh Ministers to consider whether these reforms are appropriate to Wales. The Welsh Ministers would consult on their implementation before making a decision to apply them in Wales.

178.  Subsection (4) enables the Welsh Ministers to make provision, by order, to reverse the effect of any provision made in exercise of the power contained in subsection (1).

179.  Clause 196(5) gives the Secretary of State the power to make an order in consequence of an order made by the Welsh Ministers under clause 196(1), to ensure that a relevant England-only provision continues to have the intended effect.

180.  Subsection (6) provides that an order made by the Welsh Ministers or Secretary of State under this clause may amend, repeal, revoke or otherwise modify a provision of an Act, or an instrument made under an Act. This is included as it may be necessary to amend the legislation for the procedure in question.

181.  Subsection (9) provides that no order may be made by the Welsh Ministers unless a draft of the instrument containing the order has been laid before, and approved by resolution of, the National Assembly for Wales. An order made by the Secretary of State under clause 196(5) will be subject to the affirmative resolution procedure in Parliament by virtue of clause 217(6). We consider that these are the appropriate levels of Assembly and Parliamentary scrutiny given the nature of these powers and the fact that orders made under these provisions could amend primary legislation.

Part 11 - Community Infrastructure Levy

Clause 198: The Levy

Powers conferred on:     Secretary of State (subject to the consent of the Treasury)

  Powers exercised by:     regulations

  Parliamentary procedure:   affirmative resolution of the House of Commons

182.  Clause 198(1) of the Bill provides the power to make regulations ("CIL regulations") for the introduction of a new charge to be known as the Community Infrastructure Levy. The other clauses in Part 11 set out the details of that power to make delegated legislation (see clause 198(3)).

183.   Whilst Part 11 leaves the details of this new levy to be provided for in secondary legislation, the exercise of the power to make CIL regulations is circumscribed by an overall purpose. Clause 198(2) provides:

"…..the Secretary of State shall aim to ensure that the overall purpose of CIL is to ensure that costs incurred in providing infrastructure to support the development of an area can be funded (wholly or partly) by owners or developers of land the value of which increases due to permission for development".

184.  Therefore, for example, whilst under clause 202(1) there is a duty for CIL regulations to require that CIL is applied to funding infrastructure, clause 198(2) means that CIL regulations will also need to contain provision for the purpose of ensuring that the infrastructure which is funded by CIL supports development of an area.

185.  Furthermore, the powers to make regulations under Part 11 are circumscribed in that Secretary of State may only make them with the consent of the Treasury (clause 198(1)) and provided a draft of them has been approved by the House of Commons (clause 207(2)). Therefore, CIL regulations are to be subject to an affirmative resolution procedure but a resolution only of the House of Commons is required. This is considered appropriate since the making of the regulations may result in the imposition of a charge (which is a financial matter). In broad terms, the position here is analogous to section 109 of the Finance Act 2003. This section provides the Treasury with a power to make regulations temporarily varying Part 4 of the 2003 Act, changing the law on liability to pay the stamp duty land tax. However, such regulations (like CIL regulations) are subject to the approval of the House of Commons.

186.  Consultation with the public, local government, regional government and agencies and industry stakeholders will take place on a draft of CIL regulations.

187.  The powers are designed to permit of flexibility over time, to reflect lessons learnt from the application of CIL in practice and to permit different arrangements in different areas. For instance, clause 199(1) requires CIL regulations to make provision about which authorities are empowered to charge CIL. There is a discretion, however, under that provision for the Secretary of State to decide which authorities of those listed in it (and not any others) are to be empowered to charge CIL. Amongst the authorities listed are local planning authorities within the meaning of Part 1 of the Town and Country Planning Act 1990. Such authorities have functions regarding the development of their areas including granting permissions for development. However, under Part 1 of the 1990 Act, such authorities are not constant. For example, under section 6 of the 1990 Act, enterprise zone authorities may become the local planning authority for an area (taking over functions from the local planning authorities listed in section 1 of that Act). Therefore, the powers need to cater for such changing circumstances - when one body becomes a local planning authority, taking over some or all of the functions of a local planning authority.

188.  Connected to this power to specify an appropriate charging authority are the powers in clause 202(4)(b) and clause 202(7)(d) which allow for CIL regulations to specify criteria for determining the areas in relation to which infrastructure may be funded by CIL and to permit charging authorities to spend CIL on infrastructure outside their area. Different types of planning authority have different geographical areas of responsibility and moreover, it may be desirable to permit CIL to be spent on projects outside an individual authority's area that require cross-authority support.

189.  Also, under clause 200(3) (b) it is provided that CIL regulations must define what constitutes "planning permission". A reason for providing for this (rather than simply defining "planning permission" in a fixed manner such as in terms of planning permission granted under Part 3 of the Town and Country Planning Act 1990) is that provisions in the Planning Bill provide for certain classes of development to be given permission under a new consent regime and for those classes to be expanded upon by regulation (see clauses 14(3) and 32). Therefore, the regulation-making powers need to cater for circumstances where the grant of permission for categories of development is brought outside the purview of Part 3 of the 1990 Act.

190.  Finally, clause 207(1) permits CIL regulations to make different provision for different cases, circumstances or areas. It may be appropriate, for instance, in the case of an entirely new eco-town or growth area to provide for an element of CIL to be charged for the purposes of providing the infrastructure to enable such a town or area to be provided in a sustainable way. In other words, given the purpose of CIL set out in clause 198(2), and that the level and type of development is not constant throughout England and Wales, it is desirable to ensure that the levy can be variable - i.e. that provision can be made for different arrangements in different areas.

Clause 199 - Charging authorities

191.  To some extent the reasons for the powers in clause 199 have been explained in paragraphs above. Restricting who may be a charging authority on the face of the Bill will not allow for changing circumstances to be catered for - such as where a new authority becomes responsible for the planning of an area. Indeed, the responsibility for the planning of an area may be held by more than one authority. Under section 1 of, and Schedule 1 to, the Town and Country Planning Act 1990 county councils share responsibility for development control functions with other local authorities and they are responsible only for certain aspects of land-use planning (see section 16 of the Planning and Compulsory Purchase Act 2004). Therefore, clause 199(2) allows for provision to be made for joint charging authorities.

192.  Finally, by way of a minor example, the Council of the Isles of Scilly is not a local planning authority under Part 1 of the Town and Country Planning Act 1990 or Part 2 of the Planning an Compulsory Purchase Act 2004. However, it may have the functions of a local planning authority in a modified form (see section 319 of the 1990 Act and section 116 of the Planning and Compulsory Purchase Act 2004). The powers need to be wide enough to cater for the Council to be a charging authority (thus its inclusion in clause 199(1) (b)) but not to provide that they must be a charging authority given that their role as local planning authority can change through subordinate legislation.

Clause 200 - Liability

193.  Clause 200(1) provides that CIL regulations must make provision about liability to pay CIL. In particular, clause 200(2) requires three things. First, that CIL regulations ensure that CIL is payable when development is commenced in reliance on planning permission. Secondly, that the regulations ensure that liability for CIL attaches to the owner or developer of land and finally, that the amount of CIL which is payable is determined at, or by reference to, the time when planning permission first permits the development as a result of which CIL becomes payable. In the case of the last obligation, some planning permissions (such as outline planning permissions) do not permit development to be commenced until certain planning conditions have been discharged.

194.  Clause 200(3) goes on to provide that CIL regulations must define certain terms used in clause 200(2). In doing so they give the Secretary of State discretion to define what these terms mean. Again, part of the need for flexibility here is explained above in relation to the definition of "planning permission". It is also necessary, this flexibility, in relation to the definition of "commencement of development" and the definition of "the time when planning permission first permits development". There can be detailed variations across planning permissions which are pertinent to how the rules in subsection (2) operate. For example, in an ordinary case of the grant of planning permission, when it is granted the nature and extent of the development will be known and the permission can be implemented. However, some planning permission contain conditions which permit very preliminary stages of development to take place (such as site clearances work or decontamination or archaeological investigations) but require something else to be done before any further works can be carried out. In such instances, it might be thought appropriate that CIL should not become payable at the stage where only these very preliminary stages are being carried out. Alternatively, in the case of outline planning permissions, it is possible for detailed approval to be given at different stages for different parts of a site. A detailed approval can relate to the scale of a development and when it is granted a planning permission might become capable of being implemented. Therefore, whereas it might be possible to assess under the terms of planning permission what the extent is of CIL liability in respect of part of a site when development can commence on that part, at the same time development might not be permissible on the rest of the site or the scale of the rest of development known. Being able to define the terms in subsection (3) would allow for CIL to be paid in stages for such developments and for the amount of CIL which is payable to be determined at the appropriate time. Indeed, the status of what constitutes an outline planning permission is defined by order (see section 92(1) of the Town and Country Planning Act 1990).

195.  Subsection (4) provides that CIL regulations must determine which owner or developer is liable to pay CIL and goes onto particularise that CIL regulations may, for example, define "owner" or "developer" and provide for assumed liability or joint and several liability. In the case of the definitions of "developer" and "owner", if the owner of land was only ever going to be liable, this may create problems in enforcing CIL where the owner is unknown or beyond the jurisdiction. In such cases, it may be appropriate to make the developer, the person responsible for actually implementing a planning permission on site, liable. In the case of assumed or joint liability, the provisions here are intended to provide for flexibility, for example, to allow for a person to take on CIL liability if this would facilitate the financing of a major development and if that person drops out from the development project for another person to take this assumed liability on (see paragraphs (d) and (g)). Or instead, provision will be desirable to cater for development being carried out by a partnership. A partnership has no legal identity separate from its individual members. Where one partner acts on behalf of the partnership, it will be possible to make the other partners jointly and severally liable with him.

196.  Finally, subsection (6) is concerned with ensuring that CIL regulations can deal with those situations where unlawful development take places without planning permission, for example, in order to avoid paying CIL.

Clause 201 - Amount

197.  Clause 201(1) requires that CIL regulations must include provision for determining the amount of CIL to be paid and the extent of the powers here are elaborated in subsections (2) to (6). For example, a restriction on the powers is that CIL regulations must provide for appeals on questions of fact in relation to the application of methods for calculating it (see clause 201(6)).

Subsection (2) provides two regulation-making powers. Firstly, a power to require charging authorities to set, revise or publish rates, or other criteria, by reference to which the amount of CIL is chargeable (in any particular case). Secondly, it gives a power to prescribe the procedures through which such rates or criteria are set by a charging authority. No single approach is specified here on the face of the Bill because different provision may be appropriate depending on, for example, the charging authority concerned. For instance, it is intended that CIL should be used to fund the infrastructure which is necessary for development identified in development plans (on development plans, see section 38 of the Planning and Compulsory Purchase Act 2004). Not all local planning authorities under Part 1 of the Town and Country Planning Act 1990 might be responsible for the production of a development plan (compare section 37(4) of the Planning and Compulsory Purchase Act 2004 with sections 6 to 8A of the 1990 Act). Therefore, it is conceivable that a charging authority might not produce a development plan at all. Or instead, potential charging authorities are responsible for the production of different development plans - for instance, the Secretary of State is responsible for regional spatial strategies (see Part 1 of the Planning and Compulsory Purchase Act 2004), the Mayor of London for the spatial development strategy (see Part 8 of the Greater London Authority Act 1999) and local planning authorities for development plan documents (see Part 2 of the 2004 Act). There are different procedural requirements for the production of these documents and certainly in the case of local planning authorities, they are all at very different stages in moving over to the new system of development plans under Part 2 of the 2004 Act. Therefore, if there is to be a close alignment with the production of development plans and the documents setting out the rates by reference to which CIL is calculated, a one size fits all approach would not work.

198.  Clause 201(3) provides a power to permit or require charging authorities to have regard to certain matters in setting the rate(s) of CIL which will be payable (or other criteria by reference to which the amount of CIL which is payable will be determined). Paragraphs (a) to (e) provide examples of these matters. These include the actual or expected costs of infrastructure, whether alternative sources of funding for the infrastructure are available and the actual or expected administration expenses in connection with CIL.

199.  Paragraph (f) of subsection (3) is concerned with being able to integrate the process for calculating the level of CIL with the process for producing local developments plans, for which there are different arrangements in England and Wales. The remaining paragraphs in this subsection are about enabling regulations to be made requiring a single document, a charging schedule, setting out what rates of CIL are payable to be produced (which then may be required to be published and made available for inspection) and to prescribe for what period CIL rates are to be set with a periodic duty to revise them thereafter.

200.  Regarding clause 201(4), it may be appropriate to require or permit CIL charging authorities, in their charging schedules, to use specific methods for determining how much CIL is to be payable in any given case. The powers could, for instance, provide a limited range of methodologies to be used to ensure a certain consistency of approach across all charging authorities - such as prescribing that in the case of housing development, charges should be levied by reference to the number of rooms or bedrooms or in the case of commercial development, by reference to floor-space or in both cases, by reference to internal floor-space. Or instead, the powers could be used to allow for charging authorities to make specific provision in relation to part of their area to charge higher levels of CIL - for example, where there is a particular need for a particular item of infrastructure (such as flood defence works in a flood plane) and it is thought appropriate that development in the area affected should pay a more proportionate contribution.

201.  Clause 201(5) is concerned with providing detail for the power in subsection (4) - with the detail of charging schedules and what they may or must charge by reference to and where they may or must provide for reductions. For example, the powers allow regulations to permit or require this to be done by reference to descriptions or purposes of development (such as a charge per dwelling) or by reference to any measurement of the amount or nature of development. There are very many different types of development and so for a charging schedule to account for them, the powers here need to be flexible. Clause 201(5) (d) refers to "an index used for determining a rate of inflation". This is to ensure that rates of CIL can be automatically updated to deal with rises and falls in inflation rather than charging authorities having to go through any procedure required for revising a charging schedule. Clause 201(5) (f) permits the Secretary of State through regulations to permit or require charging authorities to provide for differential rates. To ensure that CIL is set in a way that does not render significant amounts of development unviable, the level of CIL payable may need to vary in an area. The clause provides that this can be done in several ways to provide flexibility to provide local circumstances - charging authorities with limited development planned for their area may develop simple charging schedules which can vary according to simple multiples of a standard rate, whilst authorities with more complex development planned may need more sophisticated mechanisms to provide for differential rates in their area.

Clause 202 - Application

202.  Clause 202(1) requires CIL regulations to put charging authorities under an obligation to use the monies raised from CIL for the funding of infrastructure. Clause 202(2) defines what constitutes infrastructure, with a power in clause 200(3) to alter the definition. There is also a power in clause 202(2)(g) to provide in CIL regulations what housing (in addition to social housing within the meaning of Part 2 of the Housing and Regeneration Act 2008) "affordable housing" consists of. All these powers, since they are only exercisable through CIL regulations, are subject to the affirmative resolution of the House of Commons. The Committee will note that paragraph 12(1) of Schedule 12 to the Transport Act 2000 contains a power to specify by regulations how the net proceeds from a road user charging scheme are to be applied by London traffic authorities.

203.  What constitutes 'infrastructure' is not clear cut - for example, it might be commonly understood to include transport facilities and flood prevention works but there may be some argument as to whether it covers open spaces and recreational facilities or social infrastructure such as schools. An even stronger argument could be made that it does not normally consist of affordable housing. Therefore, "infrastructure" is deliberately defined widely for CIL purposes so as to try to ensure that, in the first place, the concept is flexible enough to cover the types of infrastructure which might be needed to support the development of an area.

204.  Evidently, however, it is possible that the list in subsection (2) proves too narrow to give charging authorities sufficient powers to spend CIL on appropriate forms of infrastructure. Moreover, by having an inclusive definition in clause 202(2), there may be difficult questions of interpretation about whether a particular thing is or is not infrastructure. By providing a power to add to the list of infrastructure, we are able to provide clarity, where it is needed, about the spending powers of charging authorities (without it having to be resolved by the courts).

205.  The powers in subsection (3) also allow for items to be removed from or varied in the list of infrastructure in subsection (2). This is to allow for a degree of control over what is CIL is spent on. We believe it right that central government should have these powers, subject to the consent of the House of Commons, to ensure that CIL revenue is used in the most effective way in supporting the growth envisaged in a development plan. The view might be taken, as practice evolves, that certain types of infrastructure should be the focus of CIL revenue as they are more effective in facilitating growth than others. Similarly, when CIL regulations are first made, the policy intention is that affordable housing should be excluded from the definition of infrastructure, with section 106 of the Town and Country Planning Act 1990 being used as the basis for the provision of affordable housing in connection with the grant of planning permission. Should it become apparent that the introduction of CIL results in the value of developer contributions here decreasing, the Secretary of State can use the powers to prepare new regulations for affordable housing to be added back into the definition of "infrastructure" to make up any shortfall in affordable housing provision.

206.  Subsections (4) and (6) elaborate on the extent of the powers in subsection (1). For example, subsection (4) allows for the fine tuning as to what constitutes infrastructure and funding. For example, in the case of, subsection (4) (c), this provision allows the regulations to specify what constitutes funding, with subsection (6) elaborating of the type of provision which can be made here. Under these two provisions, controls might be imposed on what revenue expenditure is permissible in connection with infrastructure funded by CIL. Financial support for the provision of infrastructure might extend beyond simply providing grant funding or a contract for the construction of something - i.e. a loan might be provided or the other matters listed in clause 202(6)(d). Also, clause 202(6)(a) provides that CIL regulations may be used to reimburse expenditure already incurred. The intention here is to make it clear that the funding which CIL provides for an item of infrastructure does not need to be given in advance of it being provided, at the very start of a project. Instead, it may be provided, for example, at a suitable stage in construction - such as when a surveyor has certified satisfactory completion.

207.  Indeed, CIL will require administering (and enforcing) and so the regulation-making powers make it clear that the monies provided can be spent on this by allowing for provision to be made permitting and controlling expenditure here (see clause 202(6)(c) and clause 204(7)).

208.  Clause 202(5) and (7) are to some extent about ensuring that adequate provision can be made for the monitoring, accounting and reporting of how monies raised under CIL are spent. Therefore, provision is made to allow for the regulations to require charging authorities to prepare lists of projects to be funded through CIL and to make provision on the procedures to be followed in preparing such lists. This would provide for public accountability about how CIL is spent (together with the provision that might be made under clause 202(7)(c) and (f) for reporting on how CIL is spent by charging and other authorities). Further, given that different authorities may potentially charge CIL (for example, local authorities and National Park authorities) it may be appropriate to make different provisions on how each of these bodies is to account for CIL which has been received or is due.

Clause 203 - Collection

209.  Clause 203(1) requires that provision is made in connection with the collection of CIL, with the extent of the powers here being particularised in subsections (2) to (7). For instance, provision might be made for payment to be made on account or by instalments or to require repayment in the case of overpayment with or without interest (in order to avoid perverse behaviour of over-paying to get a return through the payment of interest). A power to make regulations about the collection of a levy can be found in section 48 of the Local Government Act 2003, a purpose of which was to avoid too much technical or administrative detail being put on the face of the Bill. This is the motivation here (and as is the case with any CIL regulations, the affirmative resolution of the House of Common will be required before any regulations on collection are made). Similarly, paragraph 1 of Schedule 9 to the Local Government Finance Act 1988 gives powers for the Secretary of State to make regulations in relation to the collection of non-domestic rates. CIL will need to be collected in order that it can fund infrastructure and therefore provision needs to be made on its collection.

210.  Three particular powers may be of interest - those in subsections (4), (5) and (7). Subsection (4) is concerned with providing the opportunity of having a system that does not strictly insist on the payment of money to meet CIL liability. If a development is being undertaken it may be more economically efficient for an item of infrastructure to be provided as part of that development which would otherwise have to be funded by CIL. Subsection (5) is intended to provide for flexibility so that the charging authority which charges CIL does not have to be the body which collects it. For example, if the Mayor of London is a charging authority, it may be much more suitable to provide for CIL to be collected by London local planning authorities because they will have a specific knowledge of the development being undertaken in their areas, and a better understanding of enforcement related issues, through their development control functions. Finally, there is subsection (7) which provides a power to make provision about the source of payments in respect of Crown interests. The intention here, in combination with the powers in clause 207(1) (f), is to enable CIL to paid by the Crown, in circumstances where Crown land is being developed, out of monies that that would otherwise have to be reserved for other purposes. For instance, in the case of the Duchy of Cornwall, there are restrictions under section 8 of Duchy of Cornwall Management Act 1863 on how capital monies received by the Duchy can be applied. Where land of the Duchy is developed and CIL is payable by the Duchy in respect of this land, the power here would allow for regulations to be made permitting CIL to be paid out of these monies.

Clause 204 - Enforcement

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   negative resolution

211.  Clause 204 provides that CIL regulations must include provision about the enforcement of the CIL, including provision about the consequences of late payment and failure to pay. The type of provision that may be made in CIL regulations for the purposes of enforcement are listed clause 204(3) (a) to (k) and (4). In order for CIL to be effectively collected provision about its enforcement will be required and it is also appropriate (as subsection (4) (b) provides) for it to be possible to make provision for appeals in this connection. There may be a dispute of fact between a charging authority and a person which goes to the question of whether they are liable to pay CIL or what the extent of their liability is. In the case of section 48 of the Local Government Act 2003, regulations were made for the purposes of enforcing the BID levy - see, for example, paragraph 9 of Schedule 4 to the Business Improvement Districts (England) Regulations 2004, SI 2004/2443.

212.  As stated above, clause 204(3) lists a range of potential provisions for enforcement. These range from requirements about the payment of interest, provision for the registration of local land charges and provision prohibiting development in the case of non-payment to provision creating criminal offences or conferring jurisdiction on a court to decide whether or not grant an injunction. A range of potential sanctions is needed because of the types of persons who may be liable to pay CIL. For instance, in the case of a company, a penalty charge (which is a way of enforcing levies - see, for example, section 173 of the Transport Act 2000) may not be adequate since it might be financially insignificant to the company. Therefore, being able to prevent the development in connection with which the charge is being levied may be the more effective remedy - for example, through an injunction much as injunctions can be applied for under section 187B of the Town and Country Planning Act 1990 to enforce against breaches of planning control. Again, provision is currently made under section 106(12) of the Town and Country Planning Act 1990 for regulations to make obligations under that section to pay sums to a local planning authority to become charges on land. It seems sensible to allow for this in the case of CIL to discourage behaviour whereby persons might seek to evade liability by disappearing after having sold-on the land in respect of which CIL is payable. One provision in subsection (3) allows the conferral of powers to prosecute an offence. A number of charging authorities will be local authorities and they can prosecute where they consider it expedient for the promotion or protection of the interests of inhabitants of their area (see section 222 of the Local Government Act 1972). Private individuals are not so constrained and the limitations in this power may prevent the effective enforcement of CIL through criminal sanctions.

213.  Finally, in terms of criminal offences, officers of a charging authority may need to investigate evasion and so criminal provision in connection with them being obstructed or assaulted, to provide for their protection, may be appropriate. Consequently, powers are provided to create criminal offences (see subsection (3)(h)).

214.  However, the Committee will note that limits have been placed on the powers to create criminal offences (see subsection (5)). These relate to the fines that can be imposed on summary conviction (a maximum of £20,000) and the term of imprisonment that might be imposed on summary conviction (a maximum of 6 months) and on conviction on indictment (a maximum of 2 years). Whilst we consider that these maximum levels are appropriate, it is always possible that they may prove to be too constraining. Therefore, a further power has been taken (in subsection (6)) to amend them by order made by the Secretary of State (which will be subject to the negative resolution procedure because of clause 216(4)). The order-making power allows an amendment to be made to subsection (5) to reflect the commencement of section 283 of the Criminal Justice Act 2003 (and so this order-making power is inherently restricted). Section 283 allows for amendments to be made by order to pre-existing enactments so that the maximum levels of imprisonment for criminal offences in them can be made 51 weeks in the case of purely summary offences and 12 months, on summary conviction, in the case of indictable offences. It established the broad principle that the levels of penalties after summary conviction for criminal offences may need to be raised. The order-making power in subsection (6), therefore, allows for subsection (5) to be amended so that the restrictions in it are raised to a maximum of 51 weeks imprisonment in the case of purely summary offences and a maximum of 12 months imprisonment in the case of indictable offences, after summary conviction. Of course if further CIL regulations are made which make use of these increases, they would be subject to the affirmative resolution of the House of Commons.

Clause 205 - Community Infrastructure Levy: procedure

215.  Clause 205 sets out powers for CIL regulations to prescribe procedures to be followed in connection with CIL. The ways in which the powers here may be exercised are particularised in subsections (2) and (4). For example, just as the detail of procedures for the production of local development plans are set out in the Town and Country Planning (Local Development) (England) Regulations 2004 (SI 2004/2204) (and it is intended that such plans should be the basis of decisions about what development needs supporting through the funding of infrastructure by CIL), procedures will need to be set out for how charging authorities set the CIL for their area. Such procedures might include requirements about consultation and the service of notices on interested parties in connection with consultation or the decision of a charging authority about what it is going to charge, following independent examination. In addition, if regulations are made using the powers in clause 202(7)(c), consideration will need to be given about when reports on CIL spending should be prepared, how they should be publicised or made available or who they should be provided to and what level of charge, if any, might be made for a copy. Depending on the charging authorities, there may be different considerations. In addition, given the close link that it is intended that there should be about decisions on the level of CIL and local development plans, it may be desirable for the procedures for setting the level of CIL and producing development plan documents to be combined (see subsection (2) (q)) But that is not the only type of scenario that may need dealing with. Local planning authorities are all at very different stages in the production of development plans under Part 2 of the Planning and Compulsory Purchase Act 2004. Some have produced core strategies, some are in the process of doing this and some will be in the process of doing this. Moreover, in relation to Wales there is a system of local development plans which is different from that in England (see Part 6 of the Planning and Compulsory Purchase Act 2004). Therefore, a reason for the powers here is to provide for flexibility in prescribing matters which might be of considerable detail. Finally, by way of example, in order to provide a tool whereby charging authorities can monitor when CIL becomes payable in respect of a development under clause 200(2)(a), it may be desirable to require developers to serve notice on a charging authority before commencing development. In conjunction with clause 200(4) (h), this clause (subsection (2) (h) to (j)) provides the power to provide how such a notice should be served and what its content should be.

Clause 206 - Secretary of State

216.  The purpose of clause 206 is to have express provision so that it is clear that provision can be made in CIL regulations to "control the imposition, collection and application of CIL" and that it is clear that powers to do this can be conferred on the Secretary of State. For example, provision might be made permitting the Secretary of State to set a cap on the amounts of money to be collected from CIL or to require that money collected from it is applied in a certain way (see clause 206(2)). Subsection (3) provides a discretion for CIL regulations to make provision about what procedure is to be followed in exercising powers conferred under clause 206(1). This provision has the effect that the Secretary of State in making any CIL regulations dealing with the matters in clause 206(1) will need to consider whether any procedural restrictions on the exercise of her powers are appropriate.

217.  We consider that it is appropriate that legislation creating CIL should make provision in respect of matters covered by clause 206(1) to ensure an appropriate degree of control from central government. For example, capping powers already exist in statute (e.g. Chapter IVA of the Local Government Finance Act 1992 which concerns the limitation of council tax and precepts, commonly known as 'council tax capping'). Furthermore, it may be appropriate for the Secretary of State to seek to intervene in some circumstances in order to ensure that local authorities adopt consistent procedures for the collection of CIL (e.g. where a large scheme crosses several charging authority boundaries).

Clause 207 - CIL regulations: general

218.  Clause 207(1) makes provision in order to ensure that the powers to make CIL regulations are sufficiently flexible to make appropriate provision taking account of varying circumstances. The sort of provision in clause 207(1)(a) and (b) is well precedented and is justified in these circumstances because of, for example, the potential range of charging authorities and different types of planning permission that might be granted under the Town and Country Planning Act 1990.

219.  Clause 207(1) (c) allows for exceptions to be made, which is understandable since, for instance, exemptions from the levy may be appropriate. Analogous powers to provide for exemptions can be found in sections 172(1) and 187(1) of the Transport Act 2000 in relation to road user charging and the workplace parking levy, though the power to make regulations in these subsections is subject to the negative resolution procedure. Clause 207(1) (d) allows for sub-delegation. This may be desirable, for example, again in the case of exemptions, where instead of making exemptions mandatory, it might be desirable to confer a discretion on charging authorities to give exemptions in certain classes or cases. Moreover, it might be appropriate in such cases to require the consent of the Secretary of State as a pre-condition before a charging authority grants an exemption to ensure compliance with State aid rules. Clause 207(1) (d) allows for flexibility here, and as charging authorities acquire experience of operating CIL, to give them greater autonomy. Another example of the use of the powers in clause 207(1) (d) may relate to payments by instalments under clause 203(2) (b). Here it may be appropriate to give charging or collecting authorities a degree of discretion to decide when payments by instalments are appropriate.

220.  Finally, in clause 207(1)(f) (through the cross-reference to clause 217(3)(b)) there is the power to make incidental and supplementary provision (to cover the normal requirement for technical provision), transitional and transitory provision (necessary, for example, for a case where one set of CIL regulations replaces another) or consequential provision.

221.  The powers to make incidental, supplemental or consequential provision include the power to disapply, modify the effect of or amend an enactment. There is, therefore, a Henry VIII power here. Connected provision amending the operation of other enactments is likely to be needed. An example of an amendment to primary legislation would be to change the Table in section 98 of the Taxes Management Act 1980 so that an entry was provided in connection with returns made in connection with the levy. In addition, there is an argument that section 101(6) of the Local Government Act 1972 would apply in the case of CIL. This subsection prevents the application of the provisions in the rest of section 101 in the case of functions with respect to levying a rate. Section 101 allows the delegation of local authority functions to, for example, its committees or officers. It would impose a very serious practical impediment on local authorities were they not able to use the powers of delegation in section 101 in relation to, for example, the collection and enforcement of CIL. Another example is the provision that might be made under clause 203(7) relating to the payment of CIL where Crown interests (which has been explained above).

Clause 208 - Relationship with other powers

222.  Finally, clause 208(2) contains powers to make provision in CIL regulations about how powers relating to planning or development are to be exercised. Specifically, in this respect, clause 208(1) identifies section 106 of the Town and Country Planning Act 1990 and section 278 of the Highways Act 1980. Again, as with all CIL regulations, the power to make them is subject to the consent of the House of Commons.

223.  The powers in clause 208(1) and (2) are in effect Henry VIII powers given that powers relating to planning or development are provided in statute. They are not, however, powers at large. Clause 208(4) narrows the circumstances when they might be used by providing that this type of provision may only be made where the Secretary of State considers it necessary or expedient, for example, to increase the use of CIL regulations.

224.  The powers under section 106 of the Town and Country Planning Act 1990 and section 278 of the Highways Act 1980 may be exercised in connection with the grant of planning permission in order to ensure that the costs of connected infrastructure are met by, for example, the developer rather than by a local planning authority or a local highway authority. The powers are wide in that a local planning authority may request that such costs are paid where they have more than a de minimis link with the development for which planning permission is sought (see Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636).

225.  Given that CIL will constitute monies that are payable in connection with developments for which planning permission is granted and is to be used on infrastructure which supports the development of an area, there is a case to be made that the potential burden of contributions under section 106 and section 278 is reduced. Or, it might be appropriate that with the extra funding provided by CIL, the circumstances in which section 106 and section 278 may be used should be narrowed to those where their use is necessary to grant planning permission or to certain classes of infrastructure. Decisions on the precise interrelationship between CIL and these other powers may be influenced by decisions on how the powers, for example, under clause 202(1), (3) and (4) are to be exercised and this is one of the reasons it is considered appropriate to have a regulation-making power to cover this matter. In addition, as CIL beds-in, charging authorities may use it as an effective tool to plan and implement the infrastructure that supports the development of their area. If that proves the case, then they ought not to have to rely so heavily on the powers in section 106 and section 278 and, through amending any pre-existing CIL regulations, that success can be catered for.

226.  Sections 46 to 48 of the Planning and Compulsory Purchase Act 2004 do provide a precedent of sort. Powers are provided there to, in effect, comprehensively replace section 106 of the Town and Country Planning Act 1990, by a system of planning contributions set out in regulations made by the Secretary of State (see the connected repeal of section 106 in section 118 and paragraph 5 of Schedule 6 to the 2004 Act).

227.  Subsection (2) is aimed at aimed at a number of things. First, it is intended to capture the use of unilateral obligations under section 106 of the Town and Country Planning Act 1990. These are obligations which can be provided in connection with the grant of planning permission by a landowner but they do not require to be formally entered into by a local planning authority. Arguably, therefore, they do not involve the use of powers under section 106. We want to cater for them in order to prevent behaviour which undermines any controls which might be put in place, under subsection (1), on the entering into of section 106 agreements. A local planning authority might argue that whilst its powers to enter into an agreement are constrained, its powers to insist on a unilateral undertaking in order to grant planning permission are not so circumscribed. Secondly, section 106 and section 278 are not the only vehicles whereby a contribution might be made in relation to the grant of planning permission - for example, a simple undertaking might be given by a developer. In the event that these other vehicles are used as a means of avoiding any restrictions imposed under clause 208(1), we want to ensure that we have the powers to deal with this.

228.  Finally, there is a power in clause 208(5) to restrict guidance or direction-making powers through CIL regulations. The purpose here is that there are powers available to give guidance or directions to authorities that may become charging authorities - see, for example, section 167 of the Leasehold Reform, Housing and Urban Development Corporation Act 1993 (which gives such powers in respect of the Urban Regeneration Agency) and section 72 of the Housing Act 1988 (which gives such powers in relation to housing action trusts). It is considered appropriate that in respect of such powers in so far as they might be applied in relation to CIL, that Part 11 and CIL regulations should exclusively provide the statutory regime.

Part 12 - Final Provisions

Clause 212 - Expressions relating to the Crown & Parliament

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:   affirmative resolution

229.  This clause defines the meaning of a Crown interest, at the end of which there is also a power for the Secretary of State to make an order that specifies other matters as Crown interests. This clause copies over the wording of section 293 of the Town and Country Planning Act.

230.  Clause 217(6) specifies that any order by the Secretary of State under clause 212(3)(c) should be subject to Parliamentary confirmation using the affirmative resolution procedure. This is the same as in section 293 of the Town and Country Planning Act.

Clause 217 - Orders and regulations

Powers conferred on:     Secretary of State

Powers exercised by:     order

Parliamentary procedure:    negative resolution

231.  This clause gives the Secretary of State the power to make an order that contains supplementary, incidental, consequential or transitional provisions. One of the ways that it is envisaged that this power would be used is to make any necessary provision to ensure that the final Act is compatible with the provisions of other Bills passed in this session - in particular with the Housing and Regeneration Bill and the Crossrail Bill. It is also intended that the Secretary of State will make regulations about the impact of the Bill on extant but unimplemented planning permissions and other consents issued under the regimes that are being replaced.

232.  This clause specifies that any order made by the Secretary of State containing such transitional provisions should be subject to Parliamentary approval via the negative resolution procedure

Department for Communities and Local Government

June 2008

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2   "Homes for the future: more affordable, more sustainable", Communities and Local Government, 2007, Cm 7191. Back

3   'Minor' development is defined as 9 or fewer dwellings or less than 1,000 sq metres of commercial floorspace. Back

4   HBF/BPF Joint Memorandum to the Planning Bill Committee, 7 January 2008 Back