Part 5Applications for orders granting development consent
Chapter 1Applications
37Applications for orders granting development consent
(1)
An order granting development consent may be made only if an application is made for it.
(2)
An application for an order granting development consent must be made to the F1Secretary of State.
(3)
An application for an order granting development consent must F2, so far as necessary to secure that the application (including accompaniments) is of a standard that the Secretary of State considers satisfactory—
(a)
specify the development to which it relates,
(b)
be made in the prescribed form, F3and
F4(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d)
be accompanied by documents and information of a prescribed description.
F5(3A)
The documents and information prescribed under subsection (3)(d) may include documents and information demonstrating how any biodiversity gain objective in a biodiversity gain statement under Schedule 2A having effect in relation to the development is to be met.
(4)
The F1Secretary of State may give guidance about how the requirements under subsection (3) are to be complied with.
(5)
The F1Secretary of State may set standards for—
(a)
the preparation of a document required by subsection (3)(d);
(b)
the coverage in such a document of a matter falling to be dealt with in it;
(c)
all or any of the collection, sources, verification, processing and presentation of information required by subsection (3)(d).
(6)
F7(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F8(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F938Model provisions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39Register of applications
(1)
(2)
(3)
The F10Secretary of State must publish the register or make arrangements for inspection of the register by the public.
(4)
The F10Secretary of State must make arrangements for inspection by the public of—
(a)
F14(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
accompanying documents and information received by the F10Secretary of State under section 37(3)(d).
40Applications by the Crown for orders granting development consent
(1)
This section applies to an application for an order granting development consent made by or on behalf of the Crown.
(2)
The Secretary of State may by regulations modify or exclude any statutory provision relating to—
(a)
the procedure to be followed before such an application is made;
(b)
the making of such an application;
(c)
the decision-making process for such an application.
(3)
A statutory provision is a provision contained in or having effect under this Act or any other enactment.
Chapter 2Pre-application procedure
41Chapter applies before application is made
(1)
This Chapter applies where a person (“the applicant”) proposes to make an application for an order granting development consent F15(and “applicants” is to be construed accordingly).
(2)
In the following provisions of this Chapter—
“the proposed application” means the proposed application mentioned in subsection (1);
“the land” means the land to which the proposed application relates or any part of that land;
“the proposed development” means the development for which the proposed application (if made) would seek development consent.
F1642Duty to consult
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1743Local authorities for purposes of section 42(1)(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1944F18Categories for purposes of section 42(1)(d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2045Timetable for consultation under section 42
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46Duty to notify F21Secretary of StateF22and others of proposed application
F23(1)
The applicant must supply to the Secretary of State—
(a)
the information specified in subsection (1C), and
(b)
such further information as may be prescribed.
(1A)
The applicant must supply to each host local authority—
(a)
the information specified in subsection (1C), and
(b)
such further information as may be prescribed.
(1B)
In any case where the proposed development would affect, or would be likely to affect, any of the areas specified in subsection (5), the applicant must supply to the Marine Management Organisation—
(a)
the information specified in subsection (1C), and
(b)
such further information as may be prescribed.
(1C)
The information referred to in subsections (1)(a), (1A)(a) and (1B)(a) is as follows—
(a)
the applicant’s name and address,
(b)
a statement that the applicant intends to apply for an order granting development consent,
(c)
a statement about why development consent is required for the proposed development, specifying the relevant provision of Part 3 (or referring to a direction that has been given under section 35), and
(d)
a summary of the proposed application, specifying the location or route of the proposed development.
F24(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F25(3)
A local authority is a “host local authority” if the land is in the authority’s area.
(4)
In this section “local authority” means—
(a)
a county council, or district council, in England;
(b)
a London borough council;
(c)
the Common Council of the City of London;
(d)
the Council of the Isles of Scilly;
(e)
a county council, or county borough council, in Wales;
(f)
a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;
(g)
a National Park authority;
(h)
the Broads Authority.
(5)
The areas referred to in subsection (1B) are—
(a)
waters in or adjacent to England up to the seaward limits of the territorial sea;
(b)
an exclusive economic zone, except any part of an exclusive economic zone in relation to which the Scottish Ministers have functions;
(c)
a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions;
(d)
an area designated under section 1(7) of the Continental Shelf Act 1964, except any part of that area which is within a part of an exclusive economic zone or Renewable Energy Zone in relation to which the Scottish Ministers have functions.
F2647Duty to consult local community
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48Duty to publicise
(1)
The applicant must publicise the proposed application in the prescribed manner.
F27(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2849Duty to take account of responses to consultation and publicity
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2950Guidance about pre-application steps
(1)
Applicants must have regard to any guidance issued by the Secretary of State to assist them in complying with section 48.
(2)
The Secretary of State must issue guidance to assist applicants, setting out what the Secretary of State considers to be best practice in terms of the steps they might take in relation to a proposed application in readiness for submitting an actual application.
Chapter 3Assistance for applicants and others
51Advice for potential applicants and others
(1)
F30This section applies to advice about—
(a)
applying for an order granting development consent;
(b)
making representations about an application, or a proposed application, for such an order.
F31(3)
The Secretary of State may by regulations make provision about the giving of advice to which this section applies.
(4)
In particular, regulations under subsection (3) may make provision that has the effect that—
(a)
a request for advice made by an applicant, potential applicant or other person, or
(b)
advice given to an applicant, potential applicant or other person,
must be, or may be, disclosed by the Secretary of State to other persons or to the public generally.
52Obtaining information about interests in land
(1)
(2)
The F34Secretary of State may authorise the applicant to serve a notice on a person mentioned in subsection (3) requiring the person (“the recipient”) to give to the applicant in writing the name and address of any person the recipient believes is one or more of the following—
(a)
an owner, lessee, tenant (whatever the tenancy period) or occupier of the land;
(b)
a person interested in the land;
(c)
a person having power—
(i)
to sell and convey the land, or
(ii)
to release the land.
F35(2A)
The Secretary of State may authorise the applicant to serve a notice on a person mentioned in subsection (3) requiring the person (“the recipient”) to give to the applicant in writing the name and address of any person the recipient believes is a person who, if the order sought by the application or proposed application were to be made and fully implemented, would or might be entitled—
(a)
as a result of the implementing of the order,
(b)
as a result of the order having been implemented, or
(c)
as a result of the use of the land once the order has been implemented,
to make a relevant claim.
(3)
The persons are—
(a)
an occupier of the land;
(b)
a person who has an interest in the land as freeholder, mortgagee or lessee;
(c)
a person who directly or indirectly receives rent for the land;
(d)
a person who, in pursuance of an agreement between that person and a person interested in the land, is authorised to manage the land or to arrange for the letting of it.
(4)
A notice under subsection (2) F36or (2A) must—
(a)
be in writing,
(b)
state that the F37Secretary of State has authorised the applicant to serve the notice,
(c)
specify or describe the land to which the application, or proposed application, relates,
(d)
specify the deadline by which the recipient must give the required information to the applicant, and
(e)
draw attention to the provisions in subsections (6) to (9).
(5)
A deadline specified under subsection (4)(d) in a notice must not be earlier than the end of the 14 days beginning with the day after the day on which the notice is served on the recipient of the notice.
F38(5A)
A notice under subsection (2A) must explain the circumstances in which a person would or might be entitled as mentioned in that subsection.
(6)
A person commits an offence if the person fails without reasonable excuse to comply with a notice under subsection (2) F39or (2A) served on the person.
(7)
A person commits an offence if, in response to a notice under subsection (2) F39or (2A) served on the person—
(a)
the person gives information which is false in a material particular, and
(b)
when the person does so, the person knows or ought reasonably to know that the information is false.
(8)
If an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a)
a director, manager, secretary or other similar officer of the body,
(b)
a person purporting to act in any such capacity, or
(c)
in a case where the affairs of the body are managed by its members, a member of the body,
that person, as well as the body, is guilty of that offence and liable to be proceeded against accordingly.
(9)
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(10)
In subsections F40(2) to (3) “the land” means—
(a)
the land to which the application, or proposed application, relates, or
(b)
any part of that land.
(11)
Any other expression that appears in either of paragraphs (b) and (c) of subsection (2) and also in section 5(1) of the Compulsory Purchase Act 1965 (c. 56) has in those paragraphs the meaning that it has in section 5(1) of that Act.
F41(12)
In subsection (3) as it applies for the purposes of subsection (2A) “the land” also includes any relevant affected land (see subsection (13)).
(13)
Where the applicant believes that, if the order sought by the application or proposed application were to be made and fully implemented, there would or might be persons entitled—
(a)
as a result of the implementing of the order,
(b)
as a result of the order having been implemented, or
(c)
as a result of the use of the land once the order has been implemented,
to make a relevant claim in respect of any land or in respect of an interest in any land, that land is “relevant affected land” for the purposes of subsection (12).
(14)
In this section “relevant claim” means—
(a)
a claim under section 10 of the Compulsory Purchase Act 1965 (compensation where satisfaction not made for compulsory purchase of land or not made for injurious affection resulting from compulsory purchase);
(b)
a claim under Part 1 of the Land Compensation Act 1973 (compensation for depreciation of land value by physical factors caused by use of public works);
(c)
a claim under section 152(3).
53Rights of entry
(1)
F42An authorised person may at any reasonable time enter any land for the purpose of surveying and taking levels of itF43, or in order to facilitate compliance with the provisions mentioned in subsection (1A), in connection with—
(a)
an application for an order granting development consent, whether in relation to that or any other land, that has been accepted by the F44Secretary of State,
(b)
a proposed application for an order granting development consent, or
(c)
an order granting development consent that includes provision authorising the compulsory acquisition of that land or of an interest in it or right over it.
F45(1A)
Those provisions are any provision of or made under an Act for the purpose of implementing—
(a)
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended from time to time,
(b)
Council Directive 92/43/EC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended from time to time, or
(c)
any EU instrument from time to time replacing all or any part of either of those Directives.
F46(1B)
In subsection (1) “authorised person” means a person who is authorised in writing to exercise the power in that subsection on behalf of—
(a)
a person who has made an application for an order granting development consent that has been accepted by the Secretary of State,
(b)
a person who proposes to make an application for an order granting development consent, or
(c)
a person who has been granted the benefit of an order granting development consent of a kind specified in subsection (1)(c).
F47(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
Subject to subsections (9) and (10), power conferred by subsection (1) to survey land includes power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals or other matter in it.
F48(3A)
Power conferred by subsection (1) for the purpose of complying with the provisions mentioned in subsection (1A) includes power to take, and process, samples of or from any of the following found on, in or over the land—
(a)
water,
(b)
air,
(c)
soil or rock,
(d)
its flora,
(e)
bodily excretions, or dead bodies, of non-human creatures, or
(f)
any non-living thing present as a result of human action.
(4)
A person F49acting in the exercise of a power of entry onto any land conferred under subsection (1)—
(a)
must, if so required, produce evidence of the person's authority, and state the purpose of the person's entry, before so entering, F50and
(b)
F54(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F55(4A)
Notice given in accordance with subsection (4)(b) must include prescribed information.
(4B)
A justice of the peace may issue a warrant authorising a person to use force in the exercise of the power conferred under subsection (1) if satisfied—
(a)
that another person has prevented or is likely to prevent the exercise of that power, and
(b)
that it is reasonable to use force in the exercise of that power.
(4C)
The force that may be authorised by a warrant is limited to that which is reasonably necessary.
(4D)
A warrant authorising the person to use force must specify the number of occasions on which the person can rely on the warrant when entering land.
(4E)
The number specified must be the number which the justice of the peace considers appropriate to achieve the purpose for which the entry is required.
(4F)
Any evidence in proceedings for a warrant must be given on oath.
(5)
A person commits an offence if the person wilfully obstructs a person acting in the exercise of power under subsection (1).
(6)
A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7)
Where any damage is caused to land or chattels—
(a)
in the exercise of a right of entry conferred under subsection (1), or
(b)
in the making of any survey for the purpose of which any such right of entry has been conferred,
compensation may be recovered by any person suffering the damage from the person exercising the right of entry.
(8)
Any question of disputed compensation under subsection (7) must be referred to and determined by the F56Upper Tribunal.
F57(8A)
Section 4 of the Land Compensation Act 1961 (costs) applies to the determination of a question referred under subsection (8) as it applies to the determination of a question under section 1 of that Act, but as if references to the acquiring authority were references to the person from whom compensation is claimed.
(9)
No person may carry out under subsection (1) any works authorised by virtue of subsection (3) unless notice of the person's intention to do so was included in the notice required by subsection (4)(b).
(10)
The authority of the appropriate Minister is required for the carrying out under subsection (1) of works authorised by virtue of subsection (3) if—
(a)
the land in question is held by statutory undertakers, and
(b)
they object to the proposed works on the ground that execution of the works would be seriously detrimental to the carrying-on of their undertaking.
(11)
In subsection (10)—
“the appropriate Minister” means—
(a)
in the case of land in Wales held by water or sewerage undertakers, the Welsh Ministers, and
(b)
in any other case, the Secretary of State;
“statutory undertakers” means persons who are, or who are deemed to be, statutory undertakers for the purposes of any provision of Part 11 of TCPA 1990.
54Rights of entry: Crown land
(1)
Subsections (1) F58to (3A) of section 53 apply to Crown land subject to subsections (2) and (3) of this section.
(2)
A person must not enter Crown land unless the person (“P”) has the permission of—
(a)
a person appearing to P to be entitled to give it, or
(b)
the appropriate Crown authority.
(3)
In section 53(3), the words “Subject to subsections (9) and (10)” must be ignored.
(4)
Subsections (4) to (6) and (9) to (11) of section 53 do not apply to anything done by virtue of subsections (1) to (3) of this section.
F59Chapter 4Fees
54APower to provide for fees for certain services in relation to nationally significant infrastructure projects
(1)
The Secretary of State may make regulations for and in connection with the charging of fees by prescribed public authorities in relation to the provision of relevant services.
(2)
A “relevant service” means any advice, information or other assistance (including a response to a consultation) provided in connection with—
(a)
an application or proposed application—
(i)
for an order granting development consent, or
(ii)
to make a change to, or revoke, such an order, or
(b)
any other prescribed matter relating to nationally significant infrastructure projects.
(3)
The regulations under subsection (1) may in particular make provision—
(a)
about when a fee (including a supplementary fee) may, and may not, be charged;
(b)
about the amount which may be charged;
(c)
about what may, and may not, be taken into account in calculating the amount charged;
(d)
about who is liable to pay a fee charged;
(e)
about when a fee charged is payable;
(f)
about the recovery of fees charged;
(g)
about waiver, reduction or repayment of fees;
(h)
about the effect of paying or failing to pay fees charged (including provision permitting a public authority prescribed under subsection (1) to withhold a relevant service that they would otherwise be required to provide under an enactment until any outstanding fees for that service are paid);
(i)
for the supply of information for any purpose of the regulations;
(j)
conferring a function, including a function involving the exercise of a discretion, on any person.
(4)
A public authority prescribed under subsection (1) must have regard to any guidance published by the Secretary of State in relation to the exercise of its functions under the regulations.
(5)
In this section, “public authority” means any person certain of whose functions are of a public nature.