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Advice to George Parkinson

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Enquiry

From
George Parkinson
Date advice given
18 July 2011
Enquiry type
Post

Advice sought on the s.53 procedure following Halite requests for authorisation for entry to land under s.53 of the Planning Act 2008 (the Act) , compulsory acquisition authorisation under the Act and compliance with the Data Protection Act.

Advice given

Section 53 (s.53) - Rights of entry procedure

S.53 of the Act makes provision for a developer to apply to the IPC for authorisation to obtain rights of entry to land for the purpose of surveying and taking levels. The IPC can only authorise entry in relation to a proposed application at the pre-application stage, if the IPC is satisfied that the three conditions set out in s.53(2) of the Act are satisfied. These have been set out below:

a) the proposed applicant is considering a distinct project of real substance genuinely requiring entry onto the land, b) the proposed application is likely to seek authority to compulsorily acquire the land or an interest in it or right over it, and c) the proposed applicant has complied with section 42 in relation to the proposed application.

In order for the IPC to use its discretionary power under s.53, the IPC needs to be satisfied that the authorisation request is a last resort and expects a developer to demonstrate that all reasonable efforts have been made to obtain rights of entry to the land, prior to making the request to the IPC. This includes the negotiation of the proposed conditions for access. The IPC expects there to have been an exchange of correspondence and dialogue, wherever possible, between the developer and the owners and/or occupiers of the land in an attempt to agree the proposed conditions for access, prior to making the s.53 request. A full explanation should be provided by the developer as to why authorisation for rights of entry is sought.

Further information on the s.53 process is set out in the IPC Advice Note 5 which explains the s.53 process in more detail. Please note that this Advice Note was published on 14 July 2011 and replaces the previous published version of Advice Note 5. All advice notes are available on the IPC?s website:

http://infrastructure.independent.gov.uk/legislation-and-advice/our-guidance-and-advice/

S.53 applications by Halite

Halite has made applications for authorisation by the IPC under s.53 of the Act, for access to land for the purpose of surveys described by Halite as non-intrusive ecological / archaeological surveys. A Commissioner has been appointed by the IPC to determine the authorisation requests.

The authorisation requests and all accompanying documents and correspondence from Halite and from the owners and/or occupiers of the land to which the s.53 requests relate, will be provided to the appointed Commissioner.

Following determination by the Commissioner, the decision to either authorise the rights of entry, or refuse the requests with reasons will be published on the IPC?s website, along with all correspondence received from Halite and from the owners and/or occupiers of the land to which the s.53 requests relate.

Compulsory acquisition under the Planning Act

A proposed developer can make an application for a development consent order which includes proposals to compulsorily acquire land or rights in land. Compulsory acquisition can only be authorised if it meets the following tests:

? It is required for the development to which the proposed developer is seeking consent, or ? It is required to facilitate or is incidental to that development, or ? It is replacement land to be given in exchange for commons or open space, fuel or field garden allotment land needed for the proposal.

And

? That there is a compelling case in the public interest for the land to be acquired compulsorily.

If you have land that the developer may seek to compulsorily acquire, the proposed developer has a statutory duty to consult you on its proposals and demonstrate that it has done so.

Should an application be made, and accepted for examination by the IPC, and if you have an interest in land that the proposed developer has notified that it proposes to compulsorily acquire, you are automatically an ?interested party? for the purposes of any examination.

This entitles you to make representations to the IPC, attend a pre-examination meeting to consider the timetable for examination and request and attend/participate in a compulsory acquisition hearing.

Disclosure of Personal Information

It is Halite?s responsibility to ensure that any information they obtain is handled in accordance with the Data Protection Act 1998 which establishes a framework of rights and duties which are designed to safeguard personal data. The IPC is also bound by the Data Protection Act 1998. We have established procedures to ensure that we comply with the Data Protection Act 1998 when handling personal information and any correspondence received in relation to Halite?s s.53 requests will be published by the IPC in compliance with data protection principles. This means that the IPC will not publish personal data without the consent of the data subject.

If you would like further details regarding the protection of personal information, please refer to the Information Commissioner?s Office (ICO) at http://www.ico.gov.uk.