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Enquiry

From
Marrons
Date advice given
16 April 2013
Enquiry type
Email

Having considered both s127 and s138 of the Planning Act 2008, it is our view that both provisions only require the Secretary of State to issue a certificate if the DCO includes:- 

  1.   A provision authorising the compulsory acquisition of statutory undertakers? land (S127 (2)), or 

  2.   the acquisition of a right over statutory undertakers? land by the creation of a new right over land (S127 (5)); or

  3.   authorises the acquisition of land (compulsorily or by agreement) ? and (a) there subsists over the land a relevant right, or (b) there is on, under or over the land relevant apparatus (S138(1)).

On the basis that the application does not intend to compulsorily acquire any of the land or interests of a statutory undertaker, it is our view that there is no need to make an application under s127/s138.

Advice given

Your summary of the legal position is broadly correct, although you will of course have to advise your clients on these matters, and only a court can give a definitive ruling on the meaning of statutory provisions.

With regards s.127, the circumstances when this section applies are set out s.127(1). What s.127(2) and (5) do is only allow a DCO to include powers authorising the compulsory acquisition of statutory undertakers' land or rights over statutory undertakers' land if certain matters have been met and the SoS issues a certificate to that effect.

Your conclusion that "On the basis that the application does not intend to compulsorily acquire any of the land or interests of a statutory undertaker, it is our view that there is no need to make an application under s127/s138" would not necessarily be correct with regards s.138 because this section applies whether a DCO authorises the acquisition of land compulsorily or by agreement, and there subsists over the land a relevant right or there is on, under or over the land relevant apparatus (see s.138(1)).

With regards s.138, where land is to be acquired and this is proposed to be authorised by the DCO, we assume your client has satisfied itself that there are no relevant rights or relevant apparatus of any statutory undertakers in relation to any part of the application site.

You will note that s.138 also applies, in certain circumstances, to the operators of electronic communications code networks - not just statutory undertakers.

Finally, s.138 does not involve the SoS issuing a certificate but rather, where applicable, consenting to the inclusion of the relevant provision.