Monday, 9 June 2014

Infrastructure Bill

Hardly had the ink dried on the Queen’s Speech than the Infrastructure Bill was introduced in the House of Lords on the very next day (5 June) and had its First Reading - a pure formality, without debate. The Second Reading debate in the Lords is currently scheduled for Wednesday 18 June.

Conspicuous by their absence from the Bill are the promised provisions to make it easier to promote exploration for oil and gas and its extraction by ‘fracking’, including horizontal drilling under land not owned by the developers. Clearly it would have made a nonsense of the current consultation exercise if these provisions had been shoved into the Bill right from the word ‘Go’. I have no doubt, however, that the government will introduce these provisions as amendments to the Bill just as soon as they decently can, after perfunctory consideration of responses to the current consultation exercise. This will have the (possibly unintended) bonus for the government of cutting down on the opportunities for parliamentary debate on this subject if, for example, these amendments only emerge at committee stage or even report stage, as the Bill progresses through parliament.

I won’t waste space on the procedural amendments in respect of nationally significant infrastructure projects (Clauses 17 to 19). Pending the introduction of the ‘fracking’ clauses at a later date, the most interesting provision in the Bill in its present form is Clause 20, on the deemed discharge of planning conditions.

This will introduce a new Section 74A in the Town and Country Planning Act 1990, which will give the Secretary of State power to make a development order (which in practice will presumably take the form of an amendment of the Development Management Procedure Order) providing for the deemed discharge of a condition or limitation in a planning permission which requires the consent, agreement or approval of a local planning authority to any matter.

The new provision will come into play if the applicant has applied to the LPA for the consent, agreement or approval required by the condition, the period for the authority to give notice of their decision on the application has elapsed without that notice having been given, and the applicant has then taken the further steps (if any) which will be prescribed in the amended DMPO.

The amendment to the DMPO may provide that the deemed discharge procedure will not apply in relation to certain types of condition, in relation to certain types of planning permission, or in relation to certain types of development, as well as in any other prescribed circumstances.

There will be an ‘opt out’, where the applicant and the LPA both agree, before or after planning permission is granted, that this provision should not apply in a particular case.

The position relating to appeals is not entirely clear. The DMPO amendment may make provision for section 78(2) not to apply, or to apply with modifications, in cases where certain further steps (not yet identified) have been taken by the applicant.

The amended provisions of the DMPO will apply only where the original planning application is made after the DMPO amendment order comes into force. So it’s not the date of the planning permission which imposes the condition that counts - the planning application itself must post-date the effective date of the DMPO amendment.

I don’t propose to follow this Bill through parliament in all its stages, but I will keep an eye on the Bill for any significant amendments, especially the ‘fracking’ clauses, when they are introduced.


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