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Planning Act 2008

Part 7, Chapter 1: Content of development consent orders

Section 120: What may be included in order granting development consent

207.This section specifies what may be included in an order granting development consent.

208.Subsections (1) and (2) provide that an order granting development consent may impose requirements in connection with the development for which consent is granted. The types of requirements which may be imposed include those corresponding to conditions that can be imposed under the regulatory regimes which currently apply to nationally significant infrastructure projects (see section 33(1)).

209.Subsection (3) provides that an order granting development consent may also make provision for ancillary matters.

210.Subsection (4) specifies that provision that may be made under subsection (3) include provisions relating to any of the matters specified in Part 1 of Schedule 5.

211.Subsection (5) provides that an order granting development consent may apply, modify or exclude statutory provisions and may amend, repeal or revoke the provisions of a local Act, in the circumstances described. An order may also include such provisions as are necessary or expedient in order to give full effect to its other provisions.

212.Subsection (7) provides that any provisions made under subsections (3) to (6) of this section are subject to the restrictions in the rest of Chapter 1 of Part 7 of this Act. In particular, subsection (8) states that orders granting development consent may not make byelaws or create criminal offences.

Schedule 5: Provision relating to, or to matters ancillary to, development

213.Part 1 of this Schedule contains a (non-exhaustive) list of ancillary matters which may be included in an order granting development consent. These include provisions authorising the compulsory acquisition of land, the creation, suspension and extinguishment of rights over land, the stopping up of highways, the charging of tolls and the payment of contributions and compensation. Part 2 contains definitions of some of the terms used in Part 1.

Section 121: Proposed exercise of powers in relation to legislation

214.This section provides that before the Panel or Council can exercise its legislation powers under section 120(5)(a) and (b) it must send a draft of the proposed order granting development consent to the Secretary of State. If the Secretary of State considers that the provisions in the draft order would contravene European Community law or Convention rights under the Human Rights Act 1998, she may direct the Panel or Council to make specified changes to the order for the purpose of preventing the contravention arising. The Secretary of State must make any such direction within 28 days of receiving the draft order.

Section 122: Purpose for which compulsory acquisition may be authorised

215.This section specifies the purposes for which an order granting development consent can authorise the compulsory acquisition of land. The Panel, the Council or the Secretary of State, as the case may be, must be satisfied that the land:

a)

is required for the development to which the development consent relates;

b)

is required to facilitate or is incidental to that development; or

c)

is replacement land (see sections 131 and 132),

and that there is a compelling case in the public interest for the land to be acquired compulsorily.

Section 123: Land to which authorisation of compulsory acquisition can relate

216.This section provides that the decision-maker can authorise the compulsory acquisition of land only if the decision-maker is satisfied that one of the following conditions is met. The first condition is that the application included a request for compulsory acquisition of that land. The second condition is that all persons with an interest in that land consent to the inclusion of this provision. The third condition is that the prescribed procedure has been followed in relation to that land. This provision is based on an equivalent provision in the Acquisition of Land Act 1981.

Section 124: Guidance about authorisation of compulsory acquisition

217.This section allows the Secretary of State to issue guidance about the authorisation of the compulsory acquisition of land in an order granting development consent. Where the Panel or Council wishes to include in an order authorisation to purchase land compulsorily, it must have regard to this guidance.

Section 125: Application of compulsory acquisition provisions

218.This section provides that Part 1 of the Compulsory Purchase Act 1965 applies (with specified modifications) to any order granting development consent that contains provisions on compulsory acquisition of land. However, the order itself may specify otherwise. The Compulsory Purchase Act 1965 sets out the procedure whereby ownership of the land is transferred to the acquiring authority. The section makes corresponding provision in relation to Scotland.

219.This section also has the effect that the 1965 Act will apply to any acquisition of land following the service of a blight notice on the grounds that the land is blighted because its compulsory purchase is proposed in an application for an order granting development consent.

Section 126: Compensation for compulsory acquisition

220.This section places restrictions on the provision which may be made about compensation in an order granting development consent which authorises the compulsory acquisition of land.

Section 127: Statutory undertakers’ land

221.This section specifies the conditions which must be satisfied for an order granting development consent to authorise the compulsory purchase of land which a statutory undertaker has acquired for the purpose of its undertaking in circumstances where a representation has been made about the application for the order and that representation is not withdrawn. For such an order to be made the Secretary of State must certify that she is satisfied that:

a)

the land can be purchased and not replaced without serious detriment to the carrying on of the undertaking; or

b)

it can be purchased and replaced with other land without any such detriment.

222.Similarly, in the circumstances mentioned above, an order granting development consent can include a provision authorising the compulsory acquisition of a new right over land belonging to a statutory undertaker only if the Secretary of State certifies that she is satisfied that:

a)

the right can be purchased without serious detriment to the carrying on of the undertaking; or

b)

any such detriment can be remedied by the statutory undertaker’s using other land.

223.If the Secretary of State is satisfied of these matters, and issues a certificate to that effect, notice that the certificate has been given must be published in local newspapers and notified to the Commission where a Panel or the Council is the decision-maker.

Sections 128 and 129: Local authority and statutory undertakers’ land: general / Local authority and statutory undertakers’ land: acquisition by public body

224.Section 128 specifies the circumstances in which an order granting development consent that authorises the compulsory purchase of land belonging to a local authority or statutory undertakers is to be subject to special Parliamentary procedure. If a representation has been made by the local authority or statutory undertakers about an application for such an order and this has not been withdrawn, any order allowing compulsory acquisition would be subject to special Parliamentary procedure. The special Parliamentary procedure, and the system which governs it, is contained in the Statutory Orders (Special Procedure) Acts 1945 and 1965. Section 129 provides that the procedure does not apply where the person who would acquire the land is one of the public bodies listed in subsection (1).

Section 130: National Trust land

225.This section relates to land which is held inalienably by the National Trust. It provides that in certain circumstances an order granting development consent which authorises the compulsory purchase of such land or certain rights over such land, will be subject to special Parliamentary procedure. This is the case if the National Trust has made a representation about an application for such an order and this has not been withdrawn.

Section 131: Commons, open spaces etc: compulsory acquisition of land

226.This section applies to an order granting development consent which authorises the compulsory purchase of land forming part of a common, open space or fuel or field garden allotment, where this acquisition does not involve the acquisition of a new right over that land. This section specifies that such an order will be subject to special Parliamentary procedure unless the Secretary of State is satisfied either that:

a.

replacement land has been or will be given in exchange and that it will be subject to the same rights, trusts and incidents; or

b.

the land being acquired does not exceed 200 square metres, or is required for the widening or drainage of an existing highway, or partly for the widening and partly for the drainage of such a highway, and the giving of land in exchange for it is unnecessary.

Any replacement land must be no less in area than the land being compulsorily acquired and must be no less advantageous.

227.If the Secretary of State proposes to issue a certificate confirming she is satisfied of the matters outlined above, she must follow the procedures set out in subsection (6). If the Secretary of State issues a certificate, she must follow the procedures set out in subsection (10).

Section 132: Commons, open spaces etc: compulsory acquisition of rights over land

228.This section applies to an order granting development consent which authorises the compulsory acquisition of a new right over land forming part of a common, open space or fuel or field garden allotment. It provides that such an order granting development consent will be subject to special Parliamentary procedure unless the Secretary of State is satisfied either that:

a.

the land will be no less advantageous when burdened with the right to the persons mentioned in subsection (3);

b.

replacement land will be given in exchange and will be subject to the same rights, trusts and incidents; or

c.

the land over which the right is being acquired does not exceed 200 square metres, or the right is required in connection with the widening or drainage of an existing highway or in connection partly with the widening and partly with the drainage of such a highway, and the giving of land in exchange for it is unnecessary.

229.If the Secretary of State proposes to issue a certificate confirming she is satisfied of the matters outlined above, she must follow the procedures set out in subsection (6). If the Secretary of State issues a certificate she must follow the procedures set out in subsection (10).

Section 133: Rights in connection with underground gas storage facilities

230.This section modifies some of the usual procedures where an order granting development consent authorises the development of underground gas storage facilities within the meaning of section 14(1)(c), and authorises the compulsory acquisition of rights to store gas underground or certain other rights over land.

Section 134: Notice of authorisation of compulsory acquisition

231.This section requires a person (the prospective purchaser) who has been authorised to acquire land compulsorily by an order granting development consent to serve a notice about this on persons with certain interests in that land. This notice is referred to as a compulsory acquisition notice, must be in the prescribed form and must contain certain information. The prospective purchaser must also affix such a notice to a conspicuous object near the land to be acquired for 6 weeks, publish it in one or more local newspapers and make it available for inspection.

Section 135: Orders: Crown land

232.This section provides that an order granting development consent can authorise the compulsory purchase of an interest in Crown land only if the interest is for the time being held otherwise than by or on behalf of the Crown, and the appropriate Crown authority consents to the acquisition. An order granting development consent can include any other provision in relation to Crown land, or rights benefiting the Crown only if the appropriate Crown authority consents.

Section 136: Public rights of way

233.This section specifies that no order granting development consent can be made that extinguishes any public right of way over land unless the authority making it is satisfied that an alternative right of way has been or will be provided, or that such an alternative right of way is not required. Where an order granting development consent authorises the purchase of land and also extinguishes a non-vehicular public right of way over the land, the latter cannot take effect earlier than the date on which the order is published. Additionally, the appropriate authority must direct that the right revives, if the right is extinguished before the acquisition of the land is completed and the proposal to acquire the land is abandoned.

Section 137: Public rights of way: statutory undertakers’ apparatus etc.

234.This section applies to any order granting development consent which provides for the acquisition of land and authorises the extinguishment or diversion of a public right of way for non-vehicular traffic over land on which a statutory undertaker has erected apparatus or where electronic communications apparatus is kept installed. It provides that an order may include such a provision only where the relevant undertaker or operator of the network has given its consent. This consent can be subject to conditions. Any questions on the reasonableness of proposed conditions, or any refusal, are to be determined by the Secretary of State.

Section 138: Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.

235.This section relates to orders granting development consent which authorise the acquisition of land falling into one or more of two categories. One category is land on, under or over which a statutory undertaker has erected apparatus or where electronic communications apparatus is kept installed. The other category is land in respect of which a statutory undertaker or electronic communications code network operator has a specified right. Orders may include a provision requiring the removal of such apparatus or the extinguishment of such rights only if the decision-maker is satisfied that it is necessary for carrying out the development. The consent of the Secretary of State to the inclusion of the provision is required even where she is not the decision-maker if the undertaker or operator makes a representation about the application for the order and that representation is not withdrawn.

Section 139: Common land and rights of common

236.This section states that an order granting development consent cannot include provisions that exclude or modify the application of a provision of, or made under, the Commons Act 2006, or authorise the suspension of, or extinguishment or interference with, registered rights of common. The exception to this is when an order granting development consent authorises the compulsory acquisition of common land or a right over it and the provisions of clause 131 or 132 apply.

Section 140: Operation of generating stations

237.This section provides that an order granting development consent which authorises the operation of a generating station can be made only if the development to which the order relates is or includes the construction or extension of the generating station.

Section 141: Keeping electric lines installed above ground

238.This section provides that an order granting development consent may authorise overhead electric lines to be kept installed only if the development to which the order relates is or includes the installation of such lines.

Section 142: Use of underground gas storage facilities

239.By virtue of this section an order granting development consent which authorises the use of underground gas storage facilities can be made only if the order authorises the development of such facilities.

Section 143: Diversion of watercourses

240.This section states that an order granting development consent which authorises the diversion of a navigable watercourse can be made only if the new length of watercourse is conveniently navigable by vessels of a kind accustomed to using that part of the watercourse. Such an order is also taken to authorise the diversion of any adjacent tow path.

Section 144: Highways

241.This section states that an order granting development consent may authorise the charging of tolls in relation to a highway only if a request for such provision was included in the application for the order. An order granting development consent may authorise the appropriation of a highway by a person or the transfer of a highway to a person only if the appropriation or transfer is connected with the construction or improvement by the person of a highway which is designated by the order as a special road.

Section 145: Harbours

242.This section sets out the circumstances in which an order granting development consent may provide for the creation of a harbour authority, the modification of the powers or duties of an existing harbour authority or the transfer of property, rights or liabilities from one harbour authority to another.

Section 146: Discharge of water

243.This section relates to an order granting development consent which authorises the discharge of water into inland waters or underground strata. The person to whom the order is granted does not acquire the power to take water or require discharges to be made from the source of water mentioned in the order.

Section 147: Development of Green Belt land

244.Where an order granting development consent includes the provisions specified in this section in relation to Green Belt land, the Panel, the Council or the Secretary of State (as the case may be) must notify the relevant local authorities of the provision made by the order and if it is the Panel or Council that decides the application, they must also notify the Secretary of State. This matches existing provisions in the Green Belt Act 1938.

Section 148: Deemed consent under section 34 of the Coast Protection Act 1949

245.This section specifies that an order granting development consent may deem a consent under section 34 of the Coast Protection Act 1949 to have been given in relation to operations in specified areas. A person who fails to comply with any conditions attached to the deemed consent does not commit an offence under Part 8 of this Act, but instead commits an offence under the 1949 Act.

Section 149: Deemed licences under Part 2 of the Food and Environment Protection Act 1985

246.This section specifies that an order granting development consent may deem a licence under Part 2 of the Food and Environment Protection Act 1985 to have been issued for operations in specified areas. A person who fails to comply with any conditions attached to the deemed licence does not commit an offence under Part 8 of this Act, but instead commits an offence under that Act.

Section 150: Removal of consent requirements

247.This section provides that an order granting development consent may include provision removing a requirement for a prescribed consent or authorisation to be granted only if the relevant body consents.

Section 151: Liability under existing regimes

248.This section prevents an order granting development consent from excluding or modifying liability under any of the statutory regimes specified.

Section 152: Compensation in case where no right to claim in nuisance

249.This section confers a right to compensation in cases where, as a result of section 158 or the terms of a development consent order, a person would not be able to succeed in a claim for nuisance in respect of works authorised by a development consent order. Compensation is available in relation to injurious affection to a person’s land or depreciation in its value.

Chapter 2: Changes to, and revocation of, orders granting development consent
Section 153 & Schedule 6: Changes to, and revocations of, orders granting development consent

250.Section 153 introduces Schedule 6, which describes the mechanisms by which subsequent modifications, or revocations, can be made to orders granting development consent.

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