Part 6Deciding applications for orders granting development consent
Chapter 1Handling of application by Commission
I1155Acceptance of applications
1
The following provisions of this section apply where the F28Secretary of State receives an application that purports to be an application for an order granting development consent.
2
3
a
that it is an application for an order granting development consent,
F27b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
that development consent is required for any of the development to which the application relates,
F26d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
that the applicant has, in relation to a proposed application that has become the application, complied with Chapter 2 of Part 5 (pre-application procedure)F25, and
f
that the application (including accompaniments) is of a standard that the Secretary of State considers satisfactory.
4
The F28Secretary of State, when deciding whether F30the Secretary of State may reach the conclusion in subsection (3)(e), must have regard to—
a
the consultation report received under section 37(3)(c),
b
any adequacy of consultation representation received by F30the Secretary of State from a local authority consultee, and
c
the extent to which the applicant has had regard to any guidance issued under section 50.
5
In subsection (4)—
“local authority consultee” means—
“adequacy of consultation representation” means a representation about whether the applicant complied, in relation to that proposed application, with the applicant's duties under sections 42, 47 and 48.
F245A
The Secretary of State, when deciding whether the Secretary of State may reach the conclusion in subsection (3)(f), must have regard to the extent to which—
a
the application complies with the requirements in section 37(3) (form and contents of application) and any standards set under section 37(5), and
b
any applicable guidance given under section 37(4) has been followed in relation to the application.
6
7
If the F28Secretary of State is of the view that F32the application cannot be accepted, the Secretary of State must—
a
notify that view to the applicant, and
b
notify the applicant of F33the Secretary of State's reasons for that view.
8
If in response the applicant modifies (or further modifies) the application, subsections (2) to (7) then apply in relation to the application as modified.
I1I756Notifying persons of accepted application
1
Subsections (2), (6) and (7) apply where the F35Secretary of State accepts an application for an order granting development consent.
2
The applicant must give notice of the application to—
a
such persons as may be prescribed,
F3aa
the Marine Management Organisation, in any case where the development for which the application seeks development consent would involve the carrying on of any activity in one or more of the areas specified in subsection (2A),
F34b
each local authority that is within section 56A,
c
the Greater London Authority if the land to which the application relates, or any part of it, is in Greater London, and
d
each person who is within one or more of the categories set out in section 57.
F22A
The areas 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.
3
Notice under subsection (2) must be in such form and contain such matter, and be given in such manner, as may be prescribed.
4
The applicant must, when giving notice to a person under subsection (2), notify the person of the deadline for receipt by the F35Secretary of State of representations giving notice of the person's interest in, or objection to, the application.
5
A deadline notified under subsection (4) must not be earlier than the end of the period of 28 days that begins with the day after the day on which the person receives the notice.
6
The applicant must make available, to each person to whom notice is given under subsection (2), a copy of—
a
the application, and
b
the documents and information that were required by section 37(3)(d) to accompany the application.
7
The applicant must publicise the application in the prescribed manner.
8
Regulations made for the purposes of subsection (7) must, in particular, make provision for publicity under subsection (7) to include a deadline for receipt by the F35Secretary of State of representations giving notice of persons' interests in, or objections to, the application.
9
A deadline specified in accordance with subsection (8) does not apply to a person to whom notice is given under subsection (2).
56AF12Local authorities for the purposes of sections 56(2)(b) and 60(2)(a)
1
A local authority is within this section if the land is in the authority's area.
2
A local authority (“A”) is within this section if—
a
the land is in the area of another local authority (“B”),
b
B is a unitary council or a lower-tier district council, and
c
any part of the boundary of A's area is also a part of the boundary of B's area.
3
If the land is in the area of an upper-tier county council (“C”), a local authority (“D”) is within this section if—
a
D is not a lower-tier district council, and
b
any part of the boundary of D's area is also part of the boundary of C's area.
4
In this section—
“the land” means the land to which the application concerned relates or any part of that land;
“local authority” has the meaning given in section 102(8);
“lower-tier district council” means a district council in England for an area for which there is a county council;
“unitary council” means a local authority that is not an upper-tier county council, a lower-tier district council, a National Park authority or the Broads Authority;
“upper-tier county council” means a county council in England for each part of whose area there is a district council.
I857Categories for purposes of section 56(2)(d)
1
A person is within Category 1 if the applicant, after making diligent inquiry, knows that the person is an owner, lessee, tenant (whatever the tenancy period) or occupier of the land.
2
A person is within Category 2 if the applicant, after making diligent inquiry, knows that the person—
a
is interested in the land, or
b
has power—
i
to sell and convey the land, or
ii
to release the land.
3
An expression, other than “the land”, that appears in subsection (2) of this section and also in section 5(1) of the Compulsory Purchase Act 1965 (c. 56) has in subsection (2) the meaning that it has in section 5(1) of that Act.
4
A person is within Category 3 if the applicant thinks that, if the order sought by the application were to be made and fully implemented, the person 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 use of the land once the order has been implemented,
to make a relevant claim.
This is subject to subsection (5).
5
A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.
6
In subsection (4) “relevant claim” means—
a
a claim under section 10 of the Compulsory Purchase Act 1965 (compensation where satisfaction not made for the taking, or injurious affection, of land subject to compulsory purchase);
b
a claim under 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)F36;
c
a claim under section 152(3).
7
In this section “the land” means the land to which the application relates or any part of that land.
I958Certifying compliance with section 56
1
Subsection (2) applies where—
a
the F37Secretary of State has accepted an application for an order granting development consent, and
b
the applicant has complied with section 56 in relation to the application.
2
The applicant must, in such form and manner as may be prescribed, certify to the F38Secretary of State that the applicant has complied with section 56 in relation to the application.
3
A person commits an offence if the person issues a certificate which—
a
purports to be a certificate under subsection (2), and
b
contains a statement which the person knows to be false or misleading in a material particular.
4
A person commits an offence if the person recklessly issues a certificate which—
a
purports to be a certificate under subsection (2), and
b
contains a statement which is false or misleading in a material particular.
5
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.
6
A magistrates' court may try an information relating to an offence under this section whenever laid.
7
Section 127 of the Magistrates' Courts Act 1980 (c. 43) has effect subject to subsection (6) of this section.
I2I1059Notice of persons interested in land to which compulsory acquisition request relates
1
This section applies where—
a
the F39Secretary of State has accepted an application for an order granting development consent, and
b
the application includes a request for an order granting development consent to authorise compulsory acquisition of land or of an interest in or right over land (a “compulsory acquisition request”).
2
The applicant must give to the F40Secretary of State a notice specifying the names, and such other information as may be prescribed, of each affected person.
3
Notice under subsection (2) must be given in such form and manner as may be prescribed.
4
A person is an “affected person” for the purposes of this section if the applicant, after making diligent inquiry, knows that the person is interested in the land to which the compulsory acquisition request relates or any part of that land.
I1260Local impact reports
1
Subsection (2) applies where the F41Secretary of State —
a
has accepted an application for an order granting development consent, and
b
has received—
i
a certificate under section 58(2) in relation to the application, and
ii
where section 59 applies, a notice under that section in relation to the application.
2
The F41Secretary of State must give notice in writing to each of the following, inviting them to submit a local impact report F42to the Secretary of State —
F43a
each local authority that is within section 56A, and
b
the Greater London Authority if the land to which the application relates, or any part of it, is in Greater London.
3
A “local impact report” is a report in writing giving details of the likely impact of the proposed development on the authority's area (or any part of that area).
4
“The proposed development” is the development for which the application seeks development consent.
5
A notice under subsection (2) must specify the deadline for receipt by the F41Secretary of State of the local impact report.
I1361Initial choice of Panel or single F45appointed person
F1601
Subsection (2) applies where the Secretary of State has accepted an application for an order granting development consent.
F442
The Secretary of State must decide whether the application—
a
is to be handled by a Panel under Chapter 2, or
b
is to be handled by a single appointed person under Chapter 3.
3
The Secretary of State must publish the criteria that are to be applied in making decisions under subsection (2).
I1462Switching from single F48appointed person to Panel
1
Subsection (2) applies where an application for an order granting development consent is being handled by a single F46appointed person under Chapter 3.
F472
The Secretary of State may decide that the application should instead be handled by a Panel under Chapter 2.
3
The Secretary of State must publish the criteria that are to be applied in making decisions under subsection (2).
F4963Delegation of functions by person appointed to chair Commission
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 2The Panel procedure
Panels
I1564Panel for each application to be handled under this Chapter
1
This Chapter applies where—
a
the F50Secretary of State accepts an application for an order granting development consent, and
b
under section 61(2) or 62(2), it is decided that the application is to be handled by a Panel under this Chapter.
2
There is to be a Panel (referred to in this Chapter as “the Panel”) to handle the application.
I1665Appointment of members, and lead member, of Panel
F511
The Secretary of State must appoint—
a
three, four or five persons to be members of the Panel, and
b
one of those persons to chair the Panel.
2
In this Chapter “the lead member” means the person who for the time being is appointed to chair the Panel.
F523
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F524
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F525
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1766Ceasing to be member, or lead member, of Panel
F531
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
The person appointed to be the lead member ceases to hold that office if the person ceases to be a member of the Panel.
3
A person may resign from membership of the Panel by giving notice in writing to the F54Secretary of State.
4
The lead member may resign that office, without also resigning from membership of the Panel, by giving notice in writing to the F55Secretary of State.
5
The F56Secretary of State—
a
may remove a person (“the Panel member”) from membership of the Panel if the F57Secretary of State is satisfied that the Panel member is unable, unwilling or unfit to perform the duties of Panel membership;
b
may remove the lead member from that office, without also removing the lead member from membership of the Panel, if the F58Secretary of State is satisfied that the lead member is unable, unwilling or unfit to perform the duties of the office.
F5967Panel member continuing though ceasing to be Commissioner
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1868Additional appointments to Panel
1
Subsections (2) and (3) apply at any time after the initial members of the Panel have been appointed under section 65(1)(a).
F602
The Secretary of State may appoint a person to be a member of the Panel, but this power may not be exercised so as to cause the Panel to have more than five members.
3
If at any time the Panel has only two members or a single member, it is the duty of the F61Secretary of State to ensure that the power under subsection (2) is exercised so as to secure that the Panel again has at least three members.
4
A person appointed under subsection (2) becomes a member of the Panel in addition to any person who is otherwise a member of the Panel.
F625
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1969Replacement of lead member of Panel
1
Subsection (2) applies where a person ceases to hold the office of lead member.
2
The F63Secretary of State must appoint a member of the Panel to chair the Panel.
3
A person may be appointed under subsection (2) even though that person was not a member of the Panel when the vacancy arose.
F644
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6570Membership of Panel where application relates to land in Wales
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I2071Supplementary provision where Panel replaces single F15appointed person
1
Subsections (2) and (3) apply where this Chapter applies as the result of a decision under section 62(2).
2
F66An appointed person —
a
may be appointed under section 65(1)(a) or 68(2) as a member of the Panel, and
b
if a member of the Panel, may be appointed under section 65(1)(b) or 69(2) to chair the Panel.
3
The Panel may, so far as it thinks appropriate, decide to treat things done by or in relation to F67an appointed person in proceedings under Chapter 3 on the application as done by or in relation to the Panel.
4
Where the Panel makes a decision under subsection (3), the lead member is under a duty to ensure that the membership of the Panel has the necessary knowledge of the proceedings under Chapter 3 on the application.
F685
In this section “appointed person” means a person appointed to handle the application under Chapter 3.
I2172Panel ceasing to have any members
1
If the Panel ceases to have any members, a new Panel must be constituted under section 65(1).
2
At times after the new Panel has been constituted (but subject to the further application of this subsection in the event that the new Panel ceases to have any members), references in this Chapter to the Panel are to be read as references to the new Panel.
3
The new Panel may, so far as it thinks appropriate, decide to treat things—
a
done by or in relation to a previous Panel appointed to handle the application, or
b
treated under section 71(3) as done by or in relation to a previous Panel appointed to handle the application,
as done by or in relation to the new Panel.
4
Where the Panel makes a decision under subsection (3), the lead member is under a duty to ensure that the membership of the Panel has the necessary knowledge of the proceedings on the application up until the reconstitution of the Panel.
5
The power under section 68(2) is not exercisable at times when the Panel has no members.
I2273Consequences of changes in Panel
1
The Panel's continuing identity is to be taken not to be affected by—
a
any change in the membership of the Panel;
b
the Panel's coming to have only two members or a single member;
c
any change in the lead member;
d
a vacancy in that office.
2
When there is a change in the membership of the Panel, the lead member is under a duty to ensure that the membership of the Panel after the change has the necessary knowledge of the proceedings on the application up until the change.
3
Subsection (2) does not apply where the change occurs as a result of the Panel being reconstituted as required by section 72(1).
Panel's role in relation to application
I2374Panel to decide, or make recommendation in respect of, application
F691
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F70The Panel has the functions of—
a
examining the application, and
b
making a report to the Secretary of State on the application setting out—
i
the Panel's findings and conclusions in respect of the application, and
ii
the Panel's recommendation as to the decision to be made on the application.
3
The Panel's functions under this section are to be carried out in accordance with Chapter 4.
F714
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I2475Decision-making by the Panel
1
The making of a decision by the Panel requires the agreement of a majority of its members.
2
The lead member has a second (or casting) vote in the event that the number of members of the Panel agreeing to a proposed decision is the same as the number of members not so agreeing.
I2576Allocation within Panel of Panel's functions
1
This section applies in relation to the Panel's examination of the application.
2
The Panel, as an alternative to itself undertaking a part of the examination, may allocate the undertaking of that part to any one or more of the members of the Panel.
3
Where there is an allocation under subsection (2)—
a
anything that under Chapter 4 is required or authorised to be done by or to the Panel in connection with the allocated part of the examination may be done by or to the member or members concerned (or by or to the Panel), and
b
findings and conclusions of the member or members concerned in respect of the matters allocated are to be taken to be the Panel's.
4
Subsection (3)(b) has effect subject to any decision of the Panel, made on the occasion of making the allocation or earlier, as to the status of any such findings or conclusions.
5
Where there is an allocation under subsection (2) to two or more of the members of the Panel, the making of a decision by the members concerned requires the agreement of all of them.
I2677Exercise of Panel's powers for examining application
1
In this section “procedural power” means any power conferred on the Panel for the purposes of its examination of the application.
2
A procedural power, as well as being exercisable by the Panel itself, is also (subject to subsection (3)) exercisable by any one or more of the members of the Panel.
3
The Panel may decide to restrict or prohibit the exercise of a procedural power otherwise than by the Panel itself.
4
Subsection (2)—
a
applies whether or not there is an allocation under section 76(2), and
b
where there is such an allocation, is in addition to section 76(3)(a).
5
Subsection (3) does not authorise curtailment of a power conferred by section 76(3)(a).
Chapter 3The F16single-appointed-person procedure
The single F19appointed person
Words in s. 78 cross-heading substituted (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 13 para. 30(5); S.I. 2012/628, art. 7(a)
I2778Single F18appointed person to handle application
1
This Chapter applies where—
a
the F72Secretary of State accepts an application for an order granting development consent, and
b
under section 61(2), it is decided that the application is to be handled by a single F73appointed person under this Chapter.
2
In this Chapter “the single F74appointed person” means the person who is appointed to handle the application under this Chapter.
79F75Appointment of single appointed person
The Secretary of State must appoint a person to handle the application.
I2880Ceasing to be the single F22appointed person
F761
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
3
F8281Single Commissioner continuing though ceasing to be Commissioner
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I2982Appointment of replacement single F83appointed person
1
Where a person ceases to be the single F83appointed person, a new appointment of a person to handle the application must be made under section 79.
2
3
Single F20appointed person’s role in relation to application
Words in s. 83 cross-heading substituted (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 13 para. 35(2); S.I. 2012/628, art. 7(a)
I3083Single F21appointed person to examine and report on application
1
The single F84appointed person has the functions of—
a
examining the application, and
F862
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The single F88appointed person’s functions under subsection (1) are to be carried out in accordance with Chapter 4.
F874
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1784Report from single Commissioner to be referred to Council
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1785Decisions made by the Council on the application
1
This section applies to decisions made by the Council in deciding the application.
2
At least five members of the Council must participate in making a decision.
3
The making of a decision requires the agreement of a majority of the members of the Council who are participating in making it.
4
The person chairing the Council has a second (or casting) vote in the event that the number of members of the Council agreeing to a proposed decision is the same as the number of members not so agreeing.
Chapter 4Examination of applications under Chapter 2 or 3
I3186Chapter applies to examination by Panel or single F89appointed person
1
This Chapter applies—
a
in relation to the examination of an application by a Panel under Chapter 2, and
b
in relation to the examination of an application by a single F90appointed person under Chapter 3.
2
In this Chapter as it applies in relation to the examination of an application by a Panel under Chapter 2, “the Examining authority” means the Panel.
3
I3287Examining authority to control examination of application
1
It is for the Examining authority to decide how to examine the application.
2
The Examining authority, in making any decision about how the application is to be examined, must—
a
comply with—
i
the following provisions of this Chapter, and
ii
any rules made under section 97, and
F91b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The Examining authority may in examining the application disregard representations if the Examining authority considers that the representations—
a
are vexatious or frivolous,
b
relate to the merits of policy set out in a national policy statement, or
c
relate to compensation for compulsory acquisition of land or of an interest in or right over land.
I3388Initial assessment of issues, and preliminary meeting
1
The Examining authority must make such an initial assessment of the principal issues arising on the application as the Examining authority thinks appropriate.
2
After making that assessment, the Examining authority must hold a meeting.
3
The Examining authority must invite to the meeting—
a
the applicant, F8...
b
each other interested party,
F9c
each statutory party, and
d
each local authority that is within section 88A,
whether or not the Examining authority is required by rules under section 97, or chooses, also to invite other persons.
F103A
In subsection (3)(c) “statutory party” means a person specified in, or of a description specified in, regulations made by the Secretary of State.
4
The purposes of the meeting are—
a
to enable invitees present at the meeting to make representations to the Examining authority about how the application should be examined,
b
to discuss any other matter that the Examining authority wishes to discuss, and
c
any other purpose that may be specified in rules under section 97.
5
Subsections (2) to (4) do not prevent the Examining authority holding other meetings.
6
Rules under section 97—
a
may (in particular) make provision supplementing subsections (1) to (4), and
b
must make provision as to when the assessment under subsection (1) is to be made and as to when the meeting required by subsection (2) is to be held.
88AF13Local authorities for the purposes of section 88(3)(d)
1
A local authority (“A”) is within this section if—
a
the land is in the area of another local authority (“B”),
b
B is a unitary council or a lower-tier district council, and
c
any part of the boundary of A's area is also a part of the boundary of B's area.
2
If the land is in the area of an upper-tier county council (“C”), a local authority (“D”) is within this section if—
a
D is not a lower-tier district council, and
b
any part of the boundary of D's area is also part of the boundary of C's area.
3
In this section—
“the land” means the land to which the application relates or any part of that land;
“local authority” has the meaning given in section 102(8);
“lower-tier district council” means a district council in England for an area for which there is a county council;
“unitary council” means a local authority that is not an upper-tier county council, a lower-tier district council, a National Park authority or the Broads Authority;
“upper-tier county council” means a county council in England for each part of whose area there is a district council.
I3489Examining authority's decisions about how application is to be examined
1
The Examining authority must in the light of the discussion at the meeting held under section 88(2) make such procedural decisions as the Examining authority thinks appropriate.
2
The decisions required by subsection (1) may be made at or after the meeting.
F922A
Upon making the decisions required by subsection (1), the Examining authority must inform each person mentioned in section 88(3)(c) and (d)—
a
of those decisions, and
b
that the person may notify the Examining authority in writing that the person is to become an interested party.
3
The Examining authority may make procedural decisions otherwise than as required by subsection (1), and may do so at any time before or after the meeting.
4
The Examining authority must inform each interested party of any procedural decision made by the Examining authority.
5
In this section “procedural decision” means a decision about how the application is to be examined.
I3590Written representations
1
The Examining authority's examination of the application is to take the form of consideration of written representations about the application.
2
Subsection (1) has effect subject to—
a
any requirement under section 91, 92 or 93 to cause a hearing to be held, and
b
any decision by the Examining authority that any part of the examination is to take a form that is neither—
i
consideration of written representations, nor
ii
consideration of oral representations made at a hearing.
3
Rules under section 97 may (in particular) specify written representations about the application which are to be, or which may be or may not be, considered under subsection (1).
I3691Hearings about specific issues
1
Subsections (2) and (3) apply where the Examining authority decides that it is necessary for the Examining authority's examination of the application to include the consideration of oral representations about a particular issue made at a hearing in order to ensure—
a
adequate examination of the issue, or
b
that an interested party has a fair chance to put the party's case.
2
The Examining authority must cause a hearing to be held for the purpose of receiving oral representations about the issue.
3
At the hearing, each interested party is entitled (subject to the Examining authority's powers of control over the conduct of the hearing) to make oral representations about the issue.
4
Where the Examining authority is a Panel acting under Chapter 2, any two or more hearings under subsection (2) may be held concurrently.
I3792Compulsory acquisition hearings
1
This section applies where the application includes a request for an order granting development consent to authorise compulsory acquisition of land or of an interest in or right over land (a “compulsory acquisition request”).
2
The Examining authority must fix, and cause each affected person to be informed of, the deadline by which an affected person must notify the F93Secretary of State that the person wishes a compulsory acquisition hearing to be held.
3
If the F93Secretary of State receives notification from at least one affected person before the deadline, the Examining authority must cause a compulsory acquisition hearing to be held.
4
At a compulsory acquisition hearing, the following are entitled (subject to the Examining authority's powers of control over the conduct of the hearing) to make oral representations about the compulsory acquisition request—
a
the applicant;
b
each affected person.
5
A person is an “affected person” for the purposes of this section if the person's name has been given to the F93Secretary of State in a notice under section 59.
I3893Open-floor hearings
1
The Examining authority must fix, and cause the interested parties to be informed of, the deadline by which an interested party must notify the F94Secretary of State of the party's wish to be heard at an open-floor hearing.
2
If the F94Secretary of State receives notification from at least one interested party before the deadline, the Examining authority must cause an open-floor hearing to be held.
3
At an open-floor hearing, each interested party is entitled (subject to the Examining authority's powers of control over the conduct of the hearing) to make oral representations about the application.
I3994Hearings: general provisions
1
The following provisions of this section apply—
a
to a hearing under section 91(2),
b
to a compulsory acquisition hearing (see section 92), and
c
to an open-floor hearing (see section 93).
2
The hearing—
a
must be in public, and
b
must be presided over by one or more of the members of the Panel or (as the case may be) the single F95appointed person.
3
It is for the Examining authority to decide how the hearing is to be conducted.
4
In particular, it is for the Examining authority to decide—
a
whether a person making oral representations at the hearing may be questioned at the hearing by another person and, if so, the matters to which the questioning may relate;
b
the amount of time to be allowed at the hearing—
i
for the making of a person's representations (including representations made in exercise of an entitlement under section 91(3), 92(4) or 93(3)), or
ii
for any questioning by another person.
5
The Examining authority's powers under subsections (3) and (4) are subject to—
a
subsection (2), and
b
any rules made under section 97.
6
Although the Examining authority's powers under subsections (3) and (4) may be exercised for the purpose of controlling exercise of an entitlement under section 91(3), 92(4) or 93(3), those powers may not be exercised so as to deprive the person entitled of all benefit of the entitlement.
7
In making decisions under subsection (4)(a), the Examining authority must apply the principle that any oral questioning of a person making representations at a hearing (whether the applicant or any other person) should be undertaken by the Examining authority except where the Examining authority thinks that oral questioning by another person is necessary in order to ensure—
a
adequate testing of any representations, or
b
that a person has a fair chance to put the person's case.
8
The Examining authority may refuse to allow representations to be made at the hearing (including representations made in exercise of an entitlement under section 91(3), 92(4) or 93(3)) if the Examining authority considers that the representations—
a
are irrelevant, vexatious or frivolous,
b
relate to the merits of policy set out in a national policy statement,
c
repeat other representations already made (in any form and by any person), or
d
relate to compensation for compulsory acquisition of land or of an interest in or right over land.
I4095Hearings: disruption, supervision and costs
1
Where an interested party or any other person behaves in a disruptive manner at a hearing, the Examining authority may decide to do any one or more of the following—
a
exclude the person from all, or part, of the remainder of the hearing;
b
allow the person to continue to attend the hearing only if the person complies with conditions specified by the Examining authority;
c
exclude the person from other hearings;
d
direct that the person is allowed to attend other hearings only if the person complies with conditions specified by the Examining authority.
2
In this section “hearing” means—
a
a preliminary meeting under section 88,
b
a hearing under section 91(2),
c
a compulsory acquisition hearing (see section 92),
d
an open-floor hearing (see section 93),
e
any other meeting or hearing that the Examining authority causes to be held for the purposes of the Examining authority's examination of the application, or
f
a site visit.
F1583
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
Subsection (5) of section 250 of the Local Government Act 1972 (c. 70) (provisions about costs applying where Minister causes a local inquiry to be held) applies in relation to the Examining authority's examination of the application as it applies in relation to an inquiry under that section, but with references to the Minister causing the inquiry to be held being read as references to the Examining authority.
This is subject to subsection (5) of this section.
5
Subsections (6) to (8) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) (provisions about expenses applying where Minister causes a local inquiry to be held) apply in relation to the Examining authority's examination of the application in so far as relating to a hearing held in Scotland as they apply in relation to an inquiry under that section, but with references to the Minister causing the inquiry to be held being read as references to the Examining authority.
95AF11Hearings: defence and national security
1
Subsection (2) applies if the Secretary of State is satisfied that if all or part of the Examining Authority's examination of the application takes the form of a meeting or hearing—
a
the making of particular oral representations at such a meeting or hearing would be likely to result in the disclosure of information as to defence or national security, and
b
the public disclosure of that information would be contrary to the national interest.
2
The Secretary of State may direct that representations of a description specified in the direction may be made only to persons of a description so specified (instead of being made in public).
3
If the Secretary of State gives a direction under subsection (2), the Attorney General or (where the representations are to be made in Scotland) the Advocate General for Scotland may appoint a person (an “appointed representative”) to represent the interests of an interested party who (by virtue of the direction) is prevented from being present when the representations are made.
4
Rules under section 97 may (in particular) make provision as to the functions of an appointed representative.
5
The Secretary of State may direct a person (a “responsible person”) to pay the fees and expenses of an appointed representative if the Secretary of State thinks that the responsible person is interested in a meeting or hearing in relation to any representations that are the subject of a direction under subsection (2).
6
Subsections (7) and (8) apply if the Secretary of State gives a direction under subsection (5).
7
If the appointed representative and the responsible person are unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State.
8
The Secretary of State must cause the amount agreed between the appointed representative and the responsible person, or determined by the Secretary of State, to be certified.
9
An amount so certified is recoverable from the responsible person as a civil debt.
10
In this section “representations” includes evidence.
I4196Representations not made orally may be made in writing
1
Subsection (2) applies where—
a
a person asks the Examining authority to be allowed to make oral representations about the application at a hearing,
b
the person does not (for whatever reason) make the representations orally at a hearing,
c
written representations from the person are received by the F96Secretary of State before the Examining authority completes the Examining authority's examination of the application, and
d
the written representations state that they are ones that the person asked to be allowed to, but did not, make orally at a hearing.
2
The Examining authority must consider the written representations as part of the Examining authority's examination of the application, subject to section 87(3).
I4297Procedure rules
1
The Lord Chancellor or (if subsection (2) applies) the Secretary of StateF159... may make rules regulating the procedure to be followed in connection with the Examining authority's examination of the application.
2
This subsection applies if the development to which the application relates (or part of the development) is the construction (other than by a gas transporter) of an oil or gas cross-country pipe-line—
a
one end of which is in England or Wales, and
b
the other end of which is in Scotland.
3
Rules under subsection (1) may make provision for or in connection with authorising the Examining authority, alone or with others, to enter onto land, including land owned or occupied otherwise than by the applicant, for the purpose of inspecting the land as part of the Examining authority's examination of the application.
4
Rules under subsection (1) may regulate procedure in connection with matters preparatory to the Examining authority's examination of the application, and in connection with matters subsequent to the examination, as well as in connection with the conduct of the examination.
5
Power under this section to make rules includes power to make different provision for different purposes.
6
Power under this section to make rules is exercisable by statutory instrument.
7
A statutory instrument containing rules under this section is subject to annulment pursuant to a resolution of either House of Parliament.
I4398Timetable for examining, and reporting on, application
1
The Examining authority is under a duty to complete the Examining authority's examination of the application by the end of the period of 6 months beginning with the day after the start day.
2
The start day is the day on which the meeting required by section 88 is held or, if that meeting is held on two or more days, the later or latest of those days.
3
F98The Examining authority is under a duty to make its report under section 74(2)(b) or 83(1)(b) by the end of the period of 3 months F97beginning with—
a
the deadline for completion of its examination of the application, or
b
(if earlier) the end of the day on which it completes the examination.
4
The F99Secretary of State may set a date for a deadline under this section that is later than the date for the time being set.
5
The power under subsection (4) may be exercised—
a
more than once in relation to the same deadline;
b
after the date for the time being set for the deadline.
F1006
Subsections (7) and (8) apply where the power under subsection (4) is exercised.
7
The Secretary of State must—
a
notify each interested party of the new deadline, and
b
publicise the new deadline in such manner as the Secretary of State thinks appropriate.
8
The Secretary of State exercising the power must make a statement, to the House of Parliament of which that Secretary of State is a member, announcing the new deadline.
9
A statement under subsection (8) may be written or oral.
I4499Completion of Examining authority's examination of application
When the Examining authority has completed its examination of the application, it must inform each of the interested parties of that fact.
I45100Assessors
1
The F101Secretary of State may, at the request of the Examining authority, appoint a person to act as an assessor to assist the Examining authority in the Examining authority's examination of the application.
2
A person may be appointed as an assessor only if it appears to the F102Secretary of State that the person has expertise that makes the person a suitable person to provide assistance to the Examining authority.
I46101Legal advice and assistance
1
The F103Secretary of State may, at the request of the Examining authority, appoint a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority in connection with its examination of the application.
2
The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing.
I3I47102Interpretation of Chapter 4: “interested party” and other expressions
1
For the purposes of this Chapter, a person is an “interested party” if—
a
the person is the applicant,
F105aa
the person has been notified of the acceptance of the application in accordance with section 56(2)(d),
ab
the Examining authority has under section 102A decided that it considers that the person is within one or more of the categories set out in section 102B,
F7ba
the person is the Marine Management Organisation and the development for which the application seeks development consent would involve the carrying on of any activity in one or more of the areas specified in subsection (1A),
F106c
the person is a local authority in whose area the land is located,
ca
the person—
i
is mentioned in section 88(3)(c) or (d), and
ii
has notified the Examining authority as mentioned in section 89(2A)(b),
d
the person is the Greater London Authority and the land is in Greater London, or
e
the person has made a relevant representation.
F1041ZA
But a person ceases to be an “interested party” for the purposes of this Chapter upon notifying the Examining authority in writing that the person no longer wishes to be an interested party.
F61A
The areas 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.
2
In this Chapter “representation” includes evidence, and references to the making of a representation include the giving of evidence.
F1073
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
A representation is a relevant representation for the purposes of subsection (1) to the extent that—
a
it is a representation about the application,
b
it is made to the F108Secretary of State in the prescribed form and manner,
c
it is received by the F108Secretary of State no later than the deadline that applies under section 56 to the person making it,
d
it contains material of a prescribed description, and
e
it does not contain—
i
material about compensation for compulsory acquisition of land or of an interest in or right over land,
ii
material about the merits of policy set out in a national policy statement, or
iii
material that is vexatious or frivolous.
F1105
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1106
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1107
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
In F109subsection (1)(c) “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 (c. 39);
g
a National Park authority;
h
the Broads Authority.
9
In this section “the land” means the land to which the application relates or any part of that land.
102AF14Persons in certain categories may ask to become interested parties etc
1
Subsection (2) applies if—
a
a person makes a request to the Examining authority to become an interested party,
b
the request states that the person claims to be within one or more of the categories set out in section 102B,
c
the person has not been notified of the acceptance of the application in accordance with section 56(2)(d), and
d
the applicant has issued a certificate under section 58 in relation to the application.
2
The Examining authority must decide whether it considers that the person is within one or more of the categories set out in section 102B.
3
If the Examining authority decides that it considers that the person is within one or more of the categories set out in section 102B, the Examining authority must notify the person, and the applicant, that the person has become an interested party under section 102(1)(ab).
4
If the Examining authority thinks that a person might successfully make a request mentioned in subsection (1)(a), the Examining authority may inform the person about becoming an interested party under section 102(1)(ab).
But the Examining authority is under no obligation to make enquiries in order to discover persons who might make such a request.
102BCategories for the purposes of section 102A
1
A person is within Category 1 if the person is an owner, lessee, tenant (whatever the tenancy period) or occupier of the land.
2
A person is within Category 2 if the person—
a
is interested in the land, or
b
has power—
i
to sell and convey the land, or
ii
to release the land.
3
An expression, other than “the land”, that appears in subsection (2) of this section and also in section 5(1) of the Compulsory Purchase Act 1965 has in subsection (2) the meaning that it has in section 5(1) of that Act.
4
A person is within Category 3 if, should the order sought by the application be made and fully implemented, the person 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 use of the land once the order has been implemented,
to make a relevant claim.
5
In subsection (4) “relevant claim” means—
a
a claim under section 10 of the Compulsory Purchase Act 1965 (compensation where satisfaction not made for the taking, or injurious affection, of land subject to 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).
6
In this section “the land” means the land to which the application relates or any part of that land.
Chapter 5Decisions on applications
I48103F111Secretary of State is to decide applications
1
The Secretary of State has the function of deciding an application for an order granting development consent F112...
F1132
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4I49104F114Decisions in cases where national policy statement has effect
1
This section applies in relation to an application for an order granting development consent if F116a national policy statement has effect in relation to development of the description to which the application relates.
2
In deciding the application the F115Secretary of State must have regard to—
a
any national policy statement which has effect in relation to development of the description to which the application relates (a “relevant national policy statement”),
F1aa
the appropriate marine policy documents (if any), determined in accordance with section 59 of the Marine and Coastal Access Act 2009;
b
any local impact report (within the meaning given by section 60(3)) submitted to the F117Secretary of State before the deadline specified in a notice under section 60(2),
c
any matters prescribed in relation to development of the description to which the application relates, and
3
The F119Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.
4
This subsection applies if the F120Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.
5
6
This subsection applies if the F123Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.
7
This subsection applies if the F124Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.
8
This subsection applies if the F125Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.
9
For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.
I5I50105F128Decisions in cases where no national policy statement has effect
1
This section applies in relation to an application for an order granting development consent F126if section 104 does not apply in relation to the application.
2
In deciding the application the Secretary of State must have regard to—
a
any local impact report (within the meaning given by section 60(3)) submitted to the F127Secretary of State before the deadline specified in a notice under section 60(2),
b
any matters prescribed in relation to development of the description to which the application relates, and
c
any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision.
I51106Matters that may be disregarded when deciding application
1
In deciding an application for an order granting development consent, the F129Secretary of State may disregard representations if the F129Secretary of State considers that the representations—
a
are vexatious or frivolous,
b
relate to the merits of policy set out in a national policy statement, or
c
relate to compensation for compulsory acquisition of land or of an interest in or right over land.
2
In this section “representation” includes evidence.
I52107Timetable for decisions
1
The F133Secretary of State is under a duty to decide an application for an order granting development consent by the end of the period of 3 months beginning F131with—
b
(if earlier) the end of the day on which the Secretary of State receives a report on the application under section 74(2)(b) or 83(1)(b).
F1352
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The F136Secretary of State may set a date for the deadline under subsection (1) that is later than the date for the time being set.
F1374
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
The power under subsection (3) may be exercised—
a
more than once in relation to the same deadline;
b
after the date for the time being set for the deadline.
F1306
Subsection (7) applies where the power under subsection (3) is exercised.
7
The Secretary of State exercising the power must make a statement, to the House of Parliament of which that Secretary of State is a member, announcing the new deadline.
8
A statement under subsection (7) must be published in such form and manner as the Secretary of State considers appropriate.
8A
A statement under subsection (7) may be written or oral.
Chapter 6Suspension of decision-making process
I53108Suspension during review of national policy statement
1
This section applies where—
a
an application is made for an order granting development consent for development of a description in relation to which a national policy statement has effect, and
b
the Secretary of State thinks that, as a result of a change in circumstances since the national policy statement was first published or (if later) the statement or any part of it was last reviewed, all or part of the statement should be reviewed before the application is decided.
2
The Secretary of State may direct that, until the review has been completed and the Secretary of State has complied with section 6(5) in relation to the review, F138examination of the application by a Panel under Chapter 2, or a single appointed person under Chapter 3, is suspended (if not already completed).
F23Chapter 7Intervention by Secretary of State
Pt. 6 Ch. 7 repealed (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 13 para. 54, Sch. 25 Pt. 20; S.I. 2012/628, art. 7
109Intervention: significant change in circumstances
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
110Intervention: defence and national security
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
111Intervention: other circumstances
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
112Power of Secretary of State to intervene
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
113Effect of intervention
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 8Grant or refusal
I6I54114Grant or refusal of development consent
1
When F139the Secretary of State has decided an application for an order granting development consent, the F140Secretary of State must either—
a
make an order granting development consent, or
b
refuse development consent.
2
The Secretary of State may by regulations make provision regulating the procedure to be followed if the F141Secretary of State proposes to make an order granting development consent on terms which are materially different from those proposed in the application.
I55115Development for which development consent may be granted
1
Development consent may be granted for development which is—
a
development for which development consent is required, or
b
associated development.
2
“Associated development” means development which—
a
is associated with the development within subsection (1)(a) (or any part of it),
b
is not the construction or extension of one or more dwellings, and
c
is within subsection (3) F176, (4) or (4A) .
3
Development is within this subsection if it is to be carried out wholly in one or more of the following areas—
a
England;
b
waters adjacent to England up to the seaward limits of the territorial sea;
c
in the case of development in the field of energy, a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.
4
Development is within this subsection if—
a
it is to be carried out wholly in Wales,
b
it is the carrying out or construction of surface works, boreholes or pipes, and
c
the development within subsection (1)(a) with which it is associated is development within section 17(3).
F1754A
Development is within this subsection if the development within subsection (1)(a) with which it is associated is—
a
the construction or extension of a generating station that is or (when constructed or extended) is expected to be within section 15(3A) or (3B), or
b
the installation of an electric line that is or (when installed) is expected to be within section 14(1)(b).
5
To the extent that development consent is granted for associated development, section 33 applies to the development as it applies to development for which development consent is required.
F1426
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I56116Reasons for decision to grant or refuse development consent
1
The F143Secretary of State must prepare a statement of F144the Secretary of State's reasons for deciding to—
a
make an order granting development consent, or
b
refuse development consent.
2
The F145Secretary of State must provide a copy of the statement to each person who is an interested party in relation to the application for the purposes of Chapter 4 (see section 102).
3
F1484
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I57117Orders granting development consent: formalities
1
This section applies in relation to an order granting development consent.
F1492
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F1534
If the order includes provision—
a
made under section 120(3) for or relating to any of the matters listed in paragraphs 32A and 32B of Schedule 5, or
b
made in the exercise of any of the powers conferred by section 120(5)(a) or (b),
the order must be contained in a statutory instrument.
F1505
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
As soon as practicable after the instrument F154containing the order is made, the Secretary of State must deposit in the office of the Clerk of the Parliaments a copy of—
a
the instrument,
b
the latest version of any plan supplied by the applicant in connection with the application for the order contained in the instrument, and
c
the statement of reasons prepared under section 116(1).
F1557
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 9Legal challenges
I60I58118Legal challenges relating to applications for orders granting development consent
1
A court may entertain proceedings for questioning an order granting development consent only if—
a
the proceedings are brought by a claim for judicial review, and
2
A court may entertain proceedings for questioning a refusal of development consent only if—
a
the proceedings are brought by a claim for judicial review, and
3
A court may entertain proceedings for questioning a decision of the F156Secretary of State under section 55 not to accept an application for an order granting development consent only if—
a
the proceedings are brought by a claim for judicial review, and
4
A court may entertain proceedings for questioning a decision under paragraph 1 of Schedule 4 in relation to an error or omission in a decision document only if—
a
the proceedings are brought by a claim for judicial review, and
b
the claim form is filed F167before the end of the period of 6 weeks beginning with the day F168after the day on which a correction notice in respect of the error or omission is issued under paragraph 2 of that Schedule or, if the correction is required to be made by order contained in a statutory instrument, the day F168after the day on which the order is published.
5
A court may entertain proceedings for questioning a decision under paragraph 2(1) of Schedule 6 to make a change to an order granting development consent only if—
a
the proceedings are brought by a claim for judicial review, and
b
the claim form is filed F169before the end of the period of 6 weeks beginning with the day F170after the day on which notice of the change is given under paragraph 2(12)(b) of that Schedule or, if the change to the order is required to be made by order contained in a statutory instrument, the day F170after the day on which the order making the change is published.
6
A court may entertain proceedings for questioning a decision under paragraph 3(1) of Schedule 6 to make a change to, or revoke, an order granting development consent only if—
a
the proceedings are brought by a claim for judicial review, and
b
the claim form is filed F171before the end of the period of 6 weeks beginning with the day F172after the day on which notice of the change or revocation is given under paragraph 4(6) of that Schedule or, if the change or revocation is required to be made by order contained in a statutory instrument, the day F172after the day on which the order making the change or revocation is published.
7
A court may entertain proceedings for questioning anything else done, or omitted to be done, by the Secretary of State F157... in relation to an application for an order granting development consent only if—
a
the proceedings are brought by a claim for judicial review, and
8
“The relevant day”, in relation to an application for an order granting development consent, means the day on which—
a
the application is withdrawn,
b
the order granting development consent is published or (if later) the statement of reasons for making the order is published, or
c
the statement of reasons for the refusal of development consent is published.
9
Subsections (7) and (8) do not apply in relation to—
a
a failure to decide an application for an order granting development consent, or
b
anything which delays (or is likely to delay) the decision on such an application.
Chapter 10Correction of errors
I59119Correction of errors in development consent decisions
Schedule 4 (correction of errors in development consent decisions) has effect.
Words in Pt. 6 Ch. 3 heading substituted (1.4.2012) by Localism Act 2011 (c. 20), s. 240(2), Sch. 13 para. 30(6); S.I. 2012/628, art. 7(a)