Advice to Daniel Murphy

Enquiry

• From: Daniel Murphy
• Date advice given: 10 August 2011
• Enquiry type: Email

I spoke to you a short while ago regarding s.53 requests and the extent to which it is necessary to have complied with the consultation requirements of s.42 in order for a request to be authorised.

Where a proposed applicant for an order granting development consent, wishes to gain rights of entry to land under s.53 Planning Act 2008, to what extent are they required to have complied with the consultation requirements of s42 of the Act? The proposed application is at a very early stage so while local authorities are aware of the proposed application the developer's proposals are not yet at a sufficiently advanced stage to formally consult with all those falling within s42(1)(a) and s.42(1)(d). In considering a s.53 request, is account taken of the stage to which a proposed application has progressed and would the early stage of a proposed application be considered a valid reason for not having consulted with various s.42 consultees?

On another point, the IPC's s.53 advice note quotes at page 7 CLG’s Infrastructure Planning (Fees) Regulations 2010 Guidance that; “applicants should only submit requests for... access to parcels of land where they consider they have been reasonably refused that... access.” If this is the case what should an applicant do where it wishes to gain rights of entry and considers that it has been unreasonably refused access to the land?

A response at the earliest possible opportunity would be greatly appreciated.

Advice given

Thank you for your enquiry. As you are aware s.53 of the Planning Act 2008 (PA 2008) 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. A request for authorisation to enter land can be made for an accepted application, or for a proposed, or consented DCO application which includes compulsory acquisition (s.53(1)).The IPC can only authorise entry under s.53 if the IPC is satisfied that the three conditions set out in s.53(2) of the PA 2008 are satisfied. These have been set out below:

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

The IPC needs to be satisfied that the authorisation request is a 'last resort' and expects the developer to demonstrate that all reasonable efforts have been made to obtain rights of entry to the land, prior to making the formal request. This includes the negotiation of the proposed conditions for access to the land. 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.

In regard to compliance with s.42 of the PA 2008, as advised in Advice Note 5 the IPC needs to be satisfied that the developer has complied with the consultation requirements under s.42 of the Act. A list of the consultees which the developer has identified and consulted in accordance with s.42 should be also be enclosed with the authorisation request(s).

With regards to the stage to which a proposed application should have progressed, CLG Guidance on pre-application consultation makes it clear that it is up to developers to decide on the timing of their formal consultation and that there are advantages and disadvantages to both early and late consultation activities. However, although the developer does not need to have completed all the formal pre-application consultation it intends to carry out, the developer does need to have complied with s.42 of the Act.

May I take this opportunity to remind you that the IPC cannot give legal advice on which you can rely, and I would advise that you seek your own legal advice.

If you have any further questions, please do not hesitate to get in touch.