Advice to SLR Consulting Ltd

Enquiry

• From: SLR Consulting Ltd
• Date advice given: 8 February 2013
• Enquiry type: Email

I write to you to seek clarification in respect of s.53 of the Planning Act 2008 (as amended) (PA2008) and The Planning Inspectorate’s Advice Note 5 (April 2012), specifically the test under s.53(2).

Prior to the amendments to the PA2008, the criteria for demonstrating “a proposed application for an order granting development consent” (s.53(1)(b)) was that the Commission must be satisfied that “the proposed applicant has complied with section 42 in relation to the proposed application” (s.53 (2)(c)).

Advice Note 5 supports this under Header 3 in stating that “In considering compliance under s.53(2), the Secretary of State needs to be satisfied that there is a genuine requirement for entry onto land” and to do this “Confirmation should be provided of the date when notification required under s.46 of the Act was provided to the Planning Inspectorate”.

Advice Note 5, republished as Version 3 in April 2012 after the commencement of the Localism Act, has taken account of the abolition of the IPC by inserting reference to the Secretary of State. However, the PA2008 (as amended) removes the aforementioned sub-section 2(b-c) under s.53, thereby appearing to remove the need to use s.42 consultation and the associated s.46 notice as the means to confirm that the project is “distinct” and “of real substance.”

Could you please therefore confirm whether Advice Note 5 is incorrect in respect of its reference to s.46 being a factor used by the Secretary of State to consider s.53 requests? If this is the case, could you please also confirm how the Secretary of State would assess the application, specifically the judgement required under s.53(2(a)) that the project is “of real substance”.

Advice given

Thank you for your email. I have spoken with our Environmental Services team and I hope that the following addresses your query. Your understanding of the test applied in considering an application for authorisation for entry to land under s.53 of the Planning Act 2008 (as amended) (PA2008) is correct. However, reference within Advice Note 5 to s.46 being a factor used by the Secretary of State to consider whether the requirements of s.53 have been met, is not incorrect.

The Secretary of State must reach a view on whether or not the applicant is considering a distinct project of real substance genuinely requiring entry onto the land. Only if it appears to the Secretary of State that this is the case may authorisation be granted (s.53(2)). Advice Note 5 sets out the information which we advise should be supplied with an authorisation request. It is not statutory guidance, but is intended to assist applicants and those with an interest in the land subject to the authorisation request.

Reference is made to notification under s.46 in Advice Note 5, as an example of what would be suggestive of proof supplied by the applicant that they are considering a "distinct project of real substance" (s.53(2) of PA2008). However, it would only be a factor in forming a view, which would depend upon the circumstances of the case. Other information which the applicant may wish to provide with the authorisation request includes: providing information about the stage in the DCO process that the application is current at; whether any consultation has been undertaken with the appropriate consultees (this may be under s.42 of PA2008, or outside of the requirements of s.42 of the PA2008, since s.46 notification is required on or before consultation under s.42 can commence); whether the applicant has provided notification under Regulation 6(1)b of the EIA Regulations 2009 (as amended), or requested a screening opinion; and whether the applicant has requested a scoping opinion. However, it would be for the applicant to determine, taking their own legal advice where appropriate, what information they believe is appropriate to demonstrate that the requirement under s.53(2) has been met.

The Planning Inspectorate on behalf of the Secretary of State will form a view on whether or not sufficient information has been provided to enable the Secretary of State to make a determination regarding whether authorisation should be granted under s.53 of PA2008, and where appropriate following submission of an authorisation request, may request additional information.

We encourage applicants to contact the Planning Inspectorate in advance of submitting any s.53 or s.52 authorisation requests to discuss the proposed number of authorisation requests; the anticipated timings of any submissions; to provide the BACS payment details for the Planning Inspectorate; and to discuss any queries regarding the process. Such a discussion may address any potential issues prior to submission and reduce the need for the Planning Inspectorate to request more information following submission of the request, which may delay when the determination of the authorisation request is made by the Secretary of State.