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).
