Advice to RWE
Back to listEnquiry
- From
- RWE
- Date advice given
- 17 September 2010
- Enquiry type
What information is required to make a s.53 PA 2008 request for authorisation to the Commission?
Are there any other statutory timeframes apart from the 14 days notice required where the land is occupied?
What is the process where the s.53 authorisation request relates to statutory underaker's land?
Advice given
The Commission?s Advice Notes 4 & 5 relate to s.52 and s.53 of the Planning Act 2008 and are available on our website. However the Commission is currently in the process of revising these to reflect experience of best practice to date. The information set out below takes account of the proposed revisions.
You should be clear that authorisation by the Commission for access under s.53 is only to be granted as a last resort, in other words, after all other reasonable efforts have failed. The Commission will expect an applicant seeking authorisation under s.53 to demonstrate that reasonable effort has been made to obtain rights of entry to the land prior to making a s.53 authorisation request. You should take your own legal advice to ensure compliance with the Act.
Application
There is no prescribed application form to request authorisation from the Commission to enter land. In order to enable the Commission to consider the request and to decide whether to authorise entry, the information that should be provided is explained below.
The request for authorisation should enclose a Table which details the known information about the owners or occupier(s) of the land to which the proposed request relates.
Two plans (marked Plan A and Plan B) should be provided to accompany the Table.
Plan A, should clearly show: Outlined in red - Land to which an accepted Development Consent Order (DCO) application, or roposed application, or authorised DCO relates. Outlined in blue - Any land owned or under the control of the applicant (alternatively confirm that there is no land owned or under the control of the applicant within the red line boundary). Outlined in green - Land parcel(s) for which rights of entry are sought, if authorised by the Commission.
Authorisation can be sought in relation to ?any land? and the request may relate to more than one land parcel (although you should note that the Commission will decide in each case whether one or several requests is being made when determining the appropriate fee). The Commission will authorise rights of entry only in relation to the land identified in green on Plan A.
Plan A should be no larger than AO size, drawn to an identified scale (not smaller than 1:2500) and show the direction of north.
The applicant should allocate a number to each land parcel identified in green on Plan A. For ease of reference each parcel number should relate to either the registered title or the boundaries of the unregistered title. The parcel number should be clearly shown on Plan A and the same parcel numbering should be used. The registered title number where relevant should be clearly identified on the Table and the up to date official copies of the register entries and title plans should also be provided to the Commission.
The Commission may only authorise entry in relation to a proposed application if the applicant has, amongst other things, complied with Section 42. Applicants should seek their own legal advice about how to comply with the requirements of Section 42 and what diligent inquiry should be made to ascertain interests in the land. To support the s.53 request, applicants should confirm compliance with Section 42 and also demonstrate that reasonable efforts have been made to obtain rights of entry to the land parcel(s). Depending on the circumstances of the case appropriate measures could include writing non-statutory requisition notices, where known, to persons whom the applicant believes may have a relevant interest in the land seeking permission to gain rights of entry to the land. Where persons with relevant interests in the land are unknown measures might include displaying site notices and/or publishing notices in newspapers circulating in the area which includes the proposed land to which the s.53 request relates.
Where an applicant has written to known persons who have an interest in the land to which the proposed s.53 request relates, this should be indicated in the Table and copies of such letter(s) should be appended to the Table along with any plans or documents referred to in the letter(s). Copies of any responses received from the recipients should also be provided. To ensure consistency and clarity all appended and additional information should be clearly cross referenced to the Table and it should be clear to which allocated parcel number on Plan A the information relates. Where an applicant has previously posted site notices and/or published notices in newspaper(s) seeking to obtain permission to gain rights of entry to land, copies of these site notices and/or newspaper notices should be provided to the Commission along with details of when and where these notices were displayed and/or when these notices were published in the newspaper(s) and confirmation that the newspapers' circulation covers an area which includes the land for which rights of entry are sought. This information should be summarised in the Table.
If applicable a plan, Plan B, should be provided showing the land in relation to which non-statutory requisition notices have been served and the location of any site notices. This land shown in Plan B should be identified by reference to the same parcel numbers allocated in Plan A. Plan B should be the same size and scale as Plan A and show the same physical features.
Authorisation
The Commission may authorise entry to any land for the purpose of ?surveying and taking levels?, although these terms are not defined in the Planning Act 2008. The Commission takes the view, having regard to the legislative intention of s. 53 as clarified by Hansard, that ?surveying? can also include surveys for the purposes of investigating and assessing environmental impacts. The applicant should clearly specify what surveys the applicant intends to carry out, the duration, time and frequency of proposed access to carry out such surveys and an explanation as to why the surveys are connected with the DCO. If it is intended to carry out any works to investigate the nature of the subsoil or to identify the presence of minerals, the applicant should also provide details of the proposed works and indicate where and when these works will take place.
You should note the wording in s.53(2) and you should take your own legal advice as to how best address these points.
Timeframe
There is no prescribed timeframe for the Commission to respond to the request for authorisation, however the Commission will aim to respond to a request within 28 days from date of receipt. The actual timeframe will depend upon whether there is a need for further information and upon the complexity of the request. The only stated statutory timeframe is the 14 days notice required prior to entrance onto the land where the land is occupied. The Commission will respond to the request for authorisation by providing a letter either authorising the rights of entry notice, or refusing the request and providing the reasons for the refusal.
Land held by Statutory Undertakers
Where the land is held by a statutory undertaker and they object to the proposed works authorised by the Commission under s.53(3) on the ground that execution of the works would be seriously detrimental to the carrying-on of their undertaking, the authority of the appropriate Minister is required. The Commission is currently seeking to clarify the timeframe for the authorisation process by the appropriate Minister (the Minister concerned will of course depend on the type of statutory undertaker (as defined under Part 11 of Town and Country Planning Act 1990) affected). You may also wish to approach the appropriate Minister's department regarding the process for your own reference.