Part 6 – Infrastructure consent orders
171.Part 6 of the Act contains provisions which relate to infrastructure consent orders. Section 63 specifies what may be included in an infrastructure consent order. Sections 64 to 72 make provisions about orders authorising compulsory acquisition. Sections 73 to 84 provide specific limitations on what can be included in an order, and also provide specific powers to include certain provisions in orders. Section 85 details the procedure for publication of infrastructure consent orders.
172.Sections 86 to 93 provide the Welsh Ministers with powers to change or revoke infrastructure consent orders. Sections 94 to 101 are about the effect of infrastructure consent orders and contain provisions about the duration of an infrastructure consent order, legal challenges, planning obligations and compensation in cases where defence of statutory authority applies in civil or criminal proceedings for nuisance.
Provision in orders: general
Section 63 – What may be included in an infrastructure consent order
173.This section specifies what may be included in an infrastructure consent order.
174.Subsections (1) and (2) provide that an infrastructure consent order may impose requirements relating to the development for which infrastructure consent is granted. The types of requirements which may be imposed include those corresponding to conditions which could have been imposed on the grant of any permission, consent and authorisation, or the giving of any notice which would have been required for the development but for section 20(1) or any provision made under section 84. The requirements that may be imposed also include the obligation to obtain the approval of the Welsh Ministers or any other person, so far as not within section 63(2)(a).
175.Subsection (3) provides that an infrastructure consent order may also make provision relating to, or to matters ancillary to, the development for which consent is granted. The provisions that may be made under this subsection include (but are not limited to) provisions that relate to any of the matters listed in Schedule 1.
176.Subsection (4) specifies that the provision that may be made under subsection (3) includes provision relating to any of the matters specified in Part 1 of Schedule 1.
177.Subsection (5) provides that regulations may add a matter to Part 1 of Schedule 1 or vary or remove any matter listed in Part 1 of Schedule 1.
178.Subsection (6) provides that an infrastructure consent order may apply, modify or exclude an enactment which relates to any matter for which provision may be made in the order. An infrastructure consent order may also amend, repeal or revoke enactments of local application that appear to the Welsh Ministers to be appropriate in consequence of a provision of the order or in connection with the order. An infrastructure consent order may also include such provisions that appear to the Welsh Ministers to be appropriate to give full effect to any other provisions in the order and may also include any incidental, consequential, supplementary, transitional or saving provisions.
179.Subsection (7) states that infrastructure consent orders may not create offences, confer power to create an offence or change an existing power to create offences unless the provision relates to any of the matters listed in paragraph 29(1) of Schedule 1 (creation of certain offences).
180.Subsection (8) states that, to the extent that provision for or relating to a matter may be included in an infrastructure consent order, no provision can be made of the kind of an order under section 14 or 16 of the Harbour Act 1964 or an order under section 1 or 3 of the Transport and Works Act 1992.
Provision in orders authorising compulsory acquisition
Section 64 – Purpose for which compulsory acquisition may be authorised
181.Section 64 provides that an infrastructure consent order may only include provision authorising the compulsory acquisition of land if the Welsh Ministers are satisfied that the land is:
required for the development to which the infrastructure consent relates,
required to facilitate that development or is incidental to that development, or
replacement land given in exchange for the land authorised to be compulsorily acquired under section 70 (commons, open spaces etc: compulsory acquisition of land) or section 71 (commons, open spaces etc: compulsory acquisition of rights over land),
and that there is a compelling case in the public interest for the land to be acquired compulsorily.
Section 65 – Land to which authorisation of compulsory acquisition can relate
182.Section 65 provides that an infrastructure consent order may only include provision authorising the compulsory acquisition of land if the land is in Wales or the Welsh marine area and one of the following conditions is met:
the condition in subsection (2) is that the application for infrastructure consent included a request for compulsory acquisition of the land to be authorised;
the condition in subsection (3) is that all persons with an interest in the land consent to the inclusion of this provision;
the condition in subsection (4) is that the procedure specified in regulations has been followed in relation to that land.
183.“
Section 66 – Application of compulsory acquisition provisions
184.Section 66 provides that Part 1 of the Compulsory Purchase Act 1965 applies (with specified modifications) to any infrastructure consent order that contains provisions authorising the compulsory acquisition of land.
185.However, the order itself may make contrary provision.
186.The Compulsory Purchase Act 1965 sets out the procedure for compulsory purchase.
Section 67 – Compensation for compulsory acquisition
187.Section 67 restricts the provision that may be made about compensation for compulsory acquisition in an infrastructure consent order that authorises the compulsory acquisition of land.
Section 68 – Statutory undertakers’ land
188.This section sets out the conditions that must be satisfied for an infrastructure consent order to authorise the compulsory acquisition of statutory undertakers’ land.
189.Section 68 applies to land (“statutory undertakers’ land”) that a statutory undertaker has acquired for the purpose of its undertaking, and as a result of a representation made about an application for infrastructure consent, the Welsh Ministers are satisfied that the land is used for the purposes of carrying on the statutory undertakers’ undertaking or an interest in the land is held for those purposes.
190.For an infrastructure consent order to be made that includes provision authorising the compulsory acquisition of statutory undertakers’ land, the Welsh Ministers must be satisfied that the nature and the situation of the land are such that:
the land can be purchased and not replaced without serious detriment to the carrying on of the undertaking, or
it can be purchased and replaced with other land without any such detriment.
191.Similarly, an infrastructure consent order can include a provision authorising the compulsory acquisition of a right over statutory undertakers’ land only if the Welsh Ministers are satisfied that:
the right can be purchased without serious detriment to the carrying on of the undertaking, or
any detriment can be remedied by the statutory undertaker using other land.
Section 69 – National Trust land
192.Section 69 applies to land which belongs to the National Trust that is held inalienably by them. It provides that an infrastructure consent order which authorises the compulsory acquisition of such land will be subject to special Senedd procedure if the National Trust has made an objection in a representation about an application for infrastructure consent and this objection has not been withdrawn.
Section 70 – Commons, open spaces etc: compulsory acquisition of land
193.Section 70 applies to land forming part of a common, open space or fuel or field garden allotment, where the acquisition does not involve the acquisition of a new right over land. This section provides that an infrastructure consent order that authorises the compulsory acquisition of such land will be subject to special Senedd procedure unless the Welsh Ministers are satisfied that one of the following applies:
replacement land has been or will be given in exchange for the land authorised to be compulsorily acquired (“order land”) and that the replacement land will be vested in the prospective seller and subject to the same rights, trusts and incidents;
where the order land is or forms part of an open space only, there is no suitable land to be given in exchange or any suitable land is only available at a prohibitive cost, and it is in the public interest for development to be begun sooner than is likely to be possible if the order were subject to special Senedd procedure;
where the order land is or forms part of an open space only, it is being acquired for a temporary purpose;
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.
194.Where the Welsh Ministers are satisfied that one of these exceptions applies, they must record that fact in the order or otherwise in the instrument or other document containing the order.
195.Any replacement land must be no less in area than the land being compulsorily acquired and must be no less advantageous.
Section 71 – Commons, open spaces etc: compulsory acquisition of rights over land
196.Section 71 applies to land forming part of a common, open space or fuel or field garden allotment. This section provides that an infrastructure consent order that authorises the compulsory acquisition of a new right over such land will be subject to special Senedd procedure unless the Welsh Ministers are satisfied that one of the following applies:
the order land when burdened with the order right will be no less advantageous than it was before to the person in whom it is vested, any other persons (if any) entitled to rights of common or other rights, and the public;
replacement land has been or will be given in exchange for the order right and that land has been or will be vested in the persons in which the order land is vested and that replacement land will be subject to the same rights, trusts and incidents as the order land;
where the land is open space only, there is no suitable land to be given in exchange for the order right or any suitable land is only available at a prohibitive cost, and it is in the public interest for development to be begun sooner than is likely to be possible if the order were subject to special Senedd procedure;
where the land is open space only, and it is being acquired for a temporary purpose;
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 the order right is unnecessary in the interest of the person entitled to rights of common or other rights or in the interests of the public.
197.Where the Welsh Ministers are satisfied that one of these exceptions applies, they must record that fact in the order or otherwise in the instrument or other document containing the order.
198.In this section, “
Section 72 – Notice of authorisation of compulsory acquisition
199.Section 72 provides that regulations must be made by the Welsh Ministers that require a person who has been authorised by an infrastructure consent order to compulsorily acquire land or a person for whose benefit the order authorises the creation of a new right (the “prospective purchaser”) to give, publish or display a “compulsory acquisition notice” and to provide the public with access to a copy of the infrastructure consent order to which the notice relates.
200.A “compulsory acquisition notice” is a notice in the form specified in regulations that contains the information set out in subsection (2).
201.The notice must also be sent to the Chief Land Registrar and is to be a local land charge in respect of the land to which it relates.
Provision in orders: specific limitations and powers
Section 73 – Public rights of way
202.Section 73 specifies that an infrastructure consent order cannot extinguish a public right of way over land unless the Welsh Ministers are satisfied that an alternative right of way has been or will be provided or is not required.
203.Where an infrastructure consent order authorises the acquisition of land and extinguishes a non-vehicular public right of way over the land, the order cannot provide for the right of way to be extinguished earlier than the date on which the order is published. And the Welsh Ministers must direct that the right of way revives if the right is extinguished before the acquisition of the land is completed and, at any time after the time that the right is extinguished it appears to the Welsh Ministers that the proposal to acquire the land has been abandoned.
Section 74 – Power to override easements and other rights
204.This section amends section 205 of the Housing and Planning Act 2016 so that the power to override easements and other rights for carrying out building or maintenance work in section 203 of that Act and the subsequent power to pay compensation in section 204 applies where infrastructure consent has been granted for the building or maintenance work.
Section 75 – Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.
205.Section 75 applies where an infrastructure consent order authorises the acquisition of land and the land falls into any of the following categories:
land in respect of which a statutory undertaker or electronic communications code network operator has a right specified in subsection (2) (“relevant right”);
a “relevant restrictive covenant” applies to the land (which is a restrictive covenant that benefits the statutory undertakers in carrying on their undertakings);
there is on, under or over the land electronic communications apparatus or apparatus vested in or belonging to statutory undertakers (“relevant apparatus”).
206.Where this section applies, an infrastructure consent order may include a provision requiring the extinguishment of a relevant right or relevant restrictive covenant or the removal of relevant apparatus only if the Welsh Ministers are satisfied that doing so is necessary for carrying out the development to which the order relates.
Section 76 – Crown land
207.Section 76(1) provides that an infrastructure consent order can authorise the compulsory acquisition of an interest in Crown land (“Crown land” is defined in section 134) only if the interest is for the time being held otherwise than by or on behalf of the Crown, and the appropriate Crown authority (“appropriate Crown authority” is defined in section 134) consents to the acquisition.
208.Subsection (2) provides that an infrastructure consent order can include any other provision applying in relation to Crown land, or rights benefiting the Crown, only if the appropriate Crown authority consents.
Section 77 – Operation of generating stations
209.This section provides that an infrastructure consent order that authorises the operation of a generating station can only be made if the development to which the order relates is or includes the construction or extension of the generating station.
Section 78 – Keeping electric lines installed above ground
210.This section provides that an infrastructure consent order may authorise electric lines to be kept installed above ground only if the development to which the order relates is or includes the installation of the line above ground.
Section 79 – Diversion of watercourses
211.This section provides that an infrastructure consent order that authorises the diversion of any part of a navigable watercourse can only be made if the proposed new length of watercourse is navigable in a reasonably convenient manner by vessels of a kind that are accustomed to using the watercourse being diverted.
212.If an infrastructure consent order authorises the diversion of any part of a navigable watercourse, the order is also taken to authorise the diversion of any adjacent tow path or other way adjacent to that part.
Section 80 – Highways
213.This section provides that an infrastructure consent order may authorise the charging of tolls relating to a highway only if such a request was included in the application for the order.
Section 81 – Harbours
214.This section sets out the circumstances under which an infrastructure consent order may provide for the creation of a harbour authority, provide for the modification of the powers or duties of a harbour authority and authorise the transfer of property, rights or liabilities from one harbour authority to another.
Section 82 – Discharge of water
215.This section applies to an infrastructure consent order that authorises the discharge of water into inland waters or underground strata. The person to whom infrastructure consent is granted does not acquire a general power to take water or to require discharges to be made from the inland waters or other sources from which the discharge authorised by the order are intended to be made.
Section 83 – Deemed consent under a marine licence
216.This section provides that an infrastructure consent order may deem a marine licence to have been issued under Part 4 of the Marine and Coastal Access Act 2009 for any activity for which the Welsh Ministers are the appropriate licensing authority (as defined in section 113 of the Marine and Coastal Access Act 2009).
217.A person who fails to comply with any conditions attached to the deemed marine licence does not commit an offence under section 104 of the Act, but instead commits an offence under the Marine and Coastal Access Act 2009.
218.The Act does not prevent a deemed marine licence from being varied, suspended, revoked or transferred in accordance with the Marine and Coastal Access Act 2009.
Section 84 – Removing consent requirements and deeming consents
219.Section 84(1) provides that an infrastructure consent order may include provision that removes the requirement for a consent specified in regulations to be granted, or deems a consent specified in regulations to have been granted, if the authority who would usually grant the consent:
has given its consent to the provision being included in the order before the end of the period specified in regulations, or
has not refused its consent for the inclusion of such a provision before the end of the period specified in regulations.
220.Subsection (4) allows regulations to provide exceptions to the requirement to meet the conditions set out in subsections (2) and (3).
Procedure for infrastructure consent orders
Section 85 – Infrastructure consent orders: publication and procedure
221.This section requires the Welsh Ministers to publish an infrastructure consent order in such manner as they consider appropriate.
222.But an order must be contained in a statutory instrument if the order contains provision made under section 63(3) relating to any of the matters listed in paragraphs 28 and 29 of Schedule 1 (creation of certain offences by an infrastructure consent order), or is made in exercise of the powers conferred by section 63(6)(a) or (b) (modification of enactments by infrastructure consent order).
223.Where an order is contained in a statutory instrument, subsection (4) requires the Welsh Ministers to lay before Senedd Cymru a copy of the instrument, the latest version of any plan supplied by the applicant in connection with the application and a statement of reasons prepared under section 62 as soon as practicable.
Changing and revoking infrastructure consent orders etc.
Section 86 – Meaning of “decision documents” and “error”
224.This section sets out definitions for the purposes of sections 87 and 88.
Section 87 – Power to correct errors in decision documents
225.This section gives the Welsh Ministers a power to correct errors in a decision document (a “decision document” is the infrastructure consent order or the notice notifying the applicant that their application for infrastructure consent has been refused).
226.The power to correct errors may be exercised by the Welsh Ministers on receiving a request in writing to correct an error from any person or without such a request being made.
227.Subsection (4) provides that if the decision document is an infrastructure consent order, the power to correct errors must be exercised by order, and if the order being corrected is contained in a statutory instrument, the power must be exercised by statutory instrument.
228.Subsection (5) provides that if the decision document is a notice of refusal, the Welsh Ministers must exercise their power to correct the document by giving the applicant a notice.
Section 88 – Correcting errors: regulations
229.This section provides the Welsh Ministers with a power to make regulations regarding the procedure for correcting an error in a decision document.
230.The regulations may include, for example, provision regarding:
any consultation that must take place,
the circumstances in which the Welsh Ministers must publish a statement explaining the reason for correcting the error,
the effect of making a correction and not making a correction, and
when a correction takes effect.
Making changes to, and revoking, infrastructure consent orders
Section 89 – Definitions
231.This section sets out definitions for the purposes of sections 90 and 91.
Section 90 – Power to change or revoke infrastructure consent orders
232.This section gives the Welsh Ministers a power to make a change to an infrastructure consent order and to revoke an infrastructure consent order.
233.The provision that may be made by a way of a change to an infrastructure consent order includes any provision that may be made under section 63 (what may be included in an infrastructure consent order), but this is subject to the rules in this section.
234.The power to change or revoke an infrastructure consent order may be exercised on an application made by the applicant or a successor in title of the applicant, a person with an interest in the land or any other person for whose benefit the infrastructure consent order has effect, and, in the circumstances set out in subsection (4), an application can be made by a planning authority.
235.The Welsh Ministers may also change or revoke an infrastructure consent order without an application being made.
236.The Welsh Ministers may refuse to exercise the power if they consider the development, as a result of the change, should be the subject of an application for a new infrastructure consent order.
237.Subsection (7) gives examples of some of the things that the power under subsection (1) to change or revoke infrastructure consent orders can be used to do. It includes, for example, requiring the removal or alteration of buildings or existing requirements and requiring the discontinuance of a use of land.
238.Subsection (8) makes it clear that existing building or other operations which have already been carried out are not affected by the exercise of the power in subsection (1), unless the change or revocation requires the removal or alteration of building works.
Section 91 – Procedure: changing and revoking infrastructure consent orders
239.This section provides the Welsh Ministers with a power to make regulations about the procedure for changing and revoking infrastructure consent orders.
240.The regulations may, for example, make provision about how an application for changing or revoking an infrastructure consent must be made, the decision-making process for such an application and the effect of a decision to exercise the power to change or revoke an order.
241.This section provides that where a person has an interest in some, but not all, of the land to which an infrastructure consent order relates, the person may make an application to change or revoke only in respect of the land in which the person has an interest.
242.This section requires a change or revocation of an infrastructure consent order which is contained in a statutory instrument to also be contained in a statutory instrument.
Section 92 – Changing and revoking infrastructure consent orders: formalities
243.This section requires the Welsh Ministers to publish an order made under section 87 or 90 or a notice given under section 87 in a manner that they think is appropriate, but if the order is required to be contained in a statutory instrument, the Welsh Ministers must lay a copy before Senedd Cymru.
Section 93 – Changing or revoking an infrastructure consent order: compensation
244.Provision about compensation for changing or revoking an infrastructure consent order is made in Schedule 2.
Effect of infrastructure consent orders
Section 94 – Duration of infrastructure consent order
245.This section provides that where consent for development is granted by an infrastructure consent order, that development must begin within a period specified in regulations, or such other period as is specified in the order. Failure to commence development within the applicable period will result in the infrastructure consent order ceasing to have effect at the end of that period.
246.Where the infrastructure consent order authorises the compulsory acquisition of land, subsection (3) provides that any steps that may be set out in regulations must be taken before the end of a period specified in regulations or such other period as is specified in the order. If these steps are not taken within the applicable period, the authority provided by the order to compulsorily acquire the land ceases to have effect.
Section 95 – When development begins
247.This section states that development is taken to begin on the earliest day that any material operation comprised in, or carried out for the purposes of, the development begins to be carried out.
248.“
Section 96 – Legal challenges
249.This section provides that:
an infrastructure consent order,
a refusal of infrastructure consent,
a decision not to accept an application as valid,
a decision relating to correcting errors in a decision document,
a decision relating to changing or revoking an infrastructure consent order, or
anything else done or omitted to be done by the Welsh Ministers or an examining authority in relation to an application for infrastructure consent, or an application to change or revoke an infrastructure consent order,
may only be challenged by means of judicial review and in accordance with the provisions of this section. In particular, the section specifies the period within which each claim must be made.
Section 97 – Benefit of infrastructure consent order
250.Section 97 provides that an infrastructure consent order will have effect for the benefit of the land in respect of which the order is made and all those for the time being interested in the land, unless the order makes provision to the contrary.
Section 98 – Planning obligations
251.Section 98 amends the Town and Country Planning Act 1990 (“the TCPA”) so as to allow the applicant for infrastructure consent to enter into agreements with local authorities, in the same way as a developer seeking planning permission under the TCPA is able to. These agreements are called “infrastructure consent obligations”.
252.Subsection (3) amends section 106A of the TCPA. The effect of the amendment is that an infrastructure consent obligation may be varied or discharged by agreement between the Welsh Ministers and the person against whom the infrastructure consent obligation is enforceable. The amendment also provides that the person against whom the infrastructure consent obligation is enforceable may apply to the Welsh Ministers for it to be discharged or varied (if the Welsh Ministers decided or will decide the application in connection with which the obligation was entered into).
253.It will be for the local planning authority to enforce the obligation.
254.Subsection (5) makes provision about legal challenges in connection with planning obligations.
Section 99 – Blighted land
255.An infrastructure policy statement identifying a location as a suitable (or potentially suitable) location for a significant infrastructure project may create blight at that location, affecting the values of land. Blight may also result from an application being made for an infrastructure consent order authorising the compulsory acquisition of land or from such authorisation being given.
256.Section 99 amends the Town and Country Planning Act 1990 (“the TCPA”) so as to allow owner-occupiers affected in this way to have the benefit of the existing provisions of the TCPA relating to blight by making these descriptions of land “blighted land” for the purpose of the TCPA.
257.The TCPA provides a procedure which enables persons with certain interests in the land that is blighted to serve a notice on an “appropriate authority” requiring the authority to purchase their interest. The effect of subsection (6) is that the “appropriate authority” in the case of blight caused by an infrastructure policy statement is the statutory undertaker named as an appropriate person to carry out the development specified in the infrastructure policy statement, or the Welsh Ministers where there is no such named undertaker. The Welsh Ministers are to determine any disputes as to who the appropriate authority is.
258.Subsection (4) prevents the appropriate authority from serving a counter-notice to a blight notice on grounds of having no intention of conducting the development.
Section 100 – Nuisance: statutory authority
259.Section 100 confers statutory authority for carrying out development for which consent is granted by an infrastructure consent order and for doing anything else authorised by the order. Subsection (2) provides that statutory authority is conferred only for the purpose of providing a defence in civil and criminal proceedings for nuisance. Subsections (1) and (2) are subject to any contrary provision made by an infrastructure consent order.
Section 101 – Compensation in case where defence of statutory authority applies
260.Section 101 confers a right to compensation in cases where, by virtue of section 100 or the terms of an infrastructure consent order, there is a defence of statutory authority in civil or criminal proceedings for nuisance in respect of any authorised works.
261.Subsection (2) defines “authorised works” as development for which an infrastructure consent order is granted and anything else authorised by the order.
262.Subsection (3) imposes a duty on the person who carries out the authorised works or on whose behalf such works are carried out, to pay compensation to any person whose land is injuriously affected by the carrying out of the authorised works.
263.Disputes about compensation under subsection (3) are referred to the Upper Tribunal.
264.Subsection (5) provides that section 10(2) of the Compulsory Purchase Act 1965 (limitations on compensation) applies to section 101(3) as it applies to section 10(2) of the Compulsory Purchase Act 1965.
265.Any rule or principle applied to the construction of section 10 of the Compulsory Purchase Act 1965 must be applied to the construction of section 101(3) with any necessary modifications.
266.Subsection (7) provides that Part 1 of the Land Compensation Act 1973 (c. 26) (compensation for depreciation of land value by physical factors caused by use of public works) applies in relation to authorised works as if:
references in that Part to any public works were to authorised works;
references in that Part to the responsible authority were to the person for whose benefit the infrastructure order has effect for the time being;
sections 1(6) and 17 were omitted.
267.An infrastructure consent order cannot include provision the effect of which is to remove or modify the application of section 101.
Interpretation
Section 102 – Meaning of “land”
268.Section 102 provides that, in Part 6, “
