Advice to Osborne Clarke

Enquiry

• From: Osborne Clarke
• Date advice given: 7 July 2013
• Enquiry type: Email

E-mail received by the Planning Inspectorate from Neil Bromich of Osborne Clark:

Please could you outline the procedure to be followed to obtain the consent of a Crown Authority under Section 135 PA 2008. In this case we are considering whether it is necessary to include in our DCO application rights to acquire interests over Forestry Commission land in Wales for an overhead/underground connection. If we do this we will need FC’s consent, although this may not be necessary we would like to know the procedure for formally meeting the statutory consent requirement.

Advice given

Thank you for your query dated 26 June 2013 in relation to compulsory acquisition of Crown Land, I have the following information for you which I trust will be of use:

It is most likely that the Forestry Commission Wales (FCW) (now under Natural Resources Wales) is not the owner of the forest which they manage. Its principal statutory function under the Forestry Act 1967 is the management of the forests for which they are responsible; ownership therefore generally rests with the Welsh Ministers for land in Wales.

In summary, the land is Crown land and is therefore subject to s135(1) which would prevent the inclusion of provisions authorising the compulsory acquisition of any FCW lands since they are being held by or on behalf of the Crown. Any rights over Crown land held by third parties can only be compulsorily acquired if the Crown authority consents. Further to this under s153(2) of the 2008 Act a DCO may include any other provision in relation to such land only if "the appropriate Crown authority" consents to the inclusion of such provision in question. The appropriate Crown authority is defined by s227(5), and in this case would generally be in Wales, the Welsh Ministers (see s227(5)(f) of the 2008 Act).

Land held by or on behalf of the Crown

The Crown cannot consent to any interest of its own being acquired compulsorily. An interest in land held by or on behalf of the Crown should therefore be excluded from compulsory acquisition. This should be made clear in the relevant article of the draft development consent order, or in the relevant book of reference plot description (for example by use of the words "except interests held by or on behalf of the Crown").

Where such land is required for a National Infrastructure project, the land, or an interest in it held by or on behalf of the Crown, will need to be acquired through negotiation and voluntary agreement. Discussions between applicants and the appropriate Crown authority should start as soon as it is clear that such land or interests will be required. As it may be possible that the project as a whole will not get development consent if a voluntary agreement with the Crown authority is not reached, the aim should be to ensure that agreement is in place no later than the time that the application for the project is submitted to the Planning Inspectorate (on behalf of the Secretary of State). If it is clear from the outset that Crown consent is not going to be given, the appropriate Crown authority should notify the applicant of the project before their application is submitted to the Planning Inspectorate.

Interests in Crown land held by third parties

However, Section 135(1) of the Planning Act does allow development consent orders to contain provisions which authorise the compulsory acquisition of an interest in Crown land where that interest is held by a party other than the Crown. Such an interest could include, for example, a lease by a third party over Crown Estate land, and an easement or a right of way over the Crown land. Consent to the acquisition of such an interest must be given by the appropriate Crown authority for the land concerned before it can be included in a final development consent order.

Other Provisions applying to Crown Land

Section 135(2) of the Planning Act allows a development consent order to include any provision (other than a compulsory acquisition provision) which applies "in relation to Crown land or rights benefiting the Crown", but only if the appropriate Crown authority consents. “Rights benefiting the Crown” only include those rights that are exclusive to the Crown and does not include rights that benefit the general public. These provisions could include, for example, a power to use Crown land temporarily for construction or maintenance of a project.

Given this, the applicant for a project should ensure that any discussions with the Crown authority are started as soon as it is clear that an interest in Crown land will need to be acquired.

Obtaining consent of Crown Authorities

It is important that any such consents are obtained at the earliest opportunity as the development consent order cannot be made by the Secretary of State until the consent of the Crown authority is in place. If the applicant is proposing to include provisions in a draft development consent order to which Crown consent is needed, they should seek early discussions with the relevant Crown authority on whether such consent is likely to be granted before they submit their application to the Planning Inspectorate for acceptance. The Crown authority should be asked to provide an early view on any issues that will need to be resolved if their consent is to be granted. These can then be taken into account by the applicant before they submit their application to the Planning Inspectorate.

The aim should be to ensure that Crown consent is in place before the application for the development consent order is submitted. If consent is not granted by the time an application is submitted, then the applicant should give an indication of when they expect consent to be received. Any outstanding matters should then be identified in the application so these can be covered during the examination. Wherever possible, the applicant should seek, and the Crown authority should give, a consent decision before the application is submitted, even if that is only on an “in principle basis” in advance of the Examination of the project.

At the very latest, this should be by the time the examination phase of the project is completed. This will allow the Examining Authority's recommendations to the Secretary of State on whether to grant development consent for the project to include a reference to the outcome of the application for Crown consent.

This will ensure that all relevant issues are covered during the examination and that a decision by the Secretary of State on the development consent order is not delayed by the need for Crown authority consent. If, at decision stage, the Secretary of State subsequently decides to make changes to the development consent order from an earlier draft where Crown consent was agreed (or agreed in principle), then the Crown authority will be consulted and invited to give a final consent.