Part 4: Requirement for Development Consent
Section 31: When development consent is required
97.This section imposes a requirement of development consent for development which is, or forms part of, a nationally significant infrastructure project.
Section 32: Meaning of “development”
98.This section describes what constitutes “development” in the context of a nationally significant infrastructure project. It provides that “development” has the same meaning as “development” in TCPA 1990 subject to subsections (2) and (3).
99.The effect of subsection (2) is that the conversion of a generating station to enable it to use gas or petroleum as a fuel source, starting to use a cavity or strata underground for the purposes of gas storage and an increase in the permitted use of an airport count as “development” for the purposes of the development consent regime. The provision relating to generating stations replicates the position under section 14 of the Energy Act 1976, which gives the Secretary of State the power to direct that conversions should not take place. Likewise, starting to use natural porous strata underground for the purposes of gas storage currently requires the consent of the Secretary of State under section 4 of the Gas Act 1965. Similarly, a material increase in the permitted use of an airport requires a change to a planning permission or a condition of a planning permission under TCPA 1990.
100.Subsection (3) is consistent with provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990 (referred to in these notes as “the Listed Buildings Act”) and the Ancient Monuments and Archaeological Areas Act 1979. The subsection makes it clear that the types of works to heritage assets listed are to be treated as development for the purposes of the development consent regime.
Section 33: Effect of requirement for development consent on other consent regimes
101.Subsection (1) provides that where a project requires development consent under this Act, it will no longer require certain other consents under existing consent regimes. These consent regimes are listed in subsection (1), and include:
planning permission under Part 3 of TCPA 1990 (or, in relation to the Scottish part of a cross-border oil or gas pipe-line, planning permission under Part 3 of the Town and Country Planning (Scotland) Act 1997);
listed building consent under section 8 of the Listed Buildings Act;
conservation area consent under section 74 of the Listed Buildings Act;
scheduled monument consent in England and Wales under section 2 of the Ancient Monuments and Archaeological Areas Act 1979.
102.Subsection (2) of section 33 provides that where development consent is required, development may not be authorised by an order under section 14 or 16 of the Harbours Act 1964 or section 1 or 3 of the Transport and Works Act 1992.
103.Section 4(1) of the Gas Act 1965 is mentioned in both subsections (1) and (2) of section 33. It appears in subsection (1) because (by virtue of section 4(2) of the Gas Act) there is a requirement to obtain an authorisation under section 4(1). It also appears in subsection 31(2), because section 4(1) can be read as conferring a separate power on the Secretary of State to make a storage authorisation order.
104.The Highways Act 1980 gives the Secretary of State the ability to make or confirm orders about a variety of matters to do with highways, including the construction of new highways. Subsection (4) of section 33 provides that where construction, improvement or alteration of the highway requires development consent, the Secretary of State may not make or confirm such orders in relation to the highway or in connection with the construction, improvement or alteration of the highway.
Section 34: Welsh offshore generating stations
105.This section relates to section 33(2)(c) and preserves the powers of Welsh Ministers to make orders under section 3 of the Transport and Works Act 1992 in relation to the construction or extension of Welsh offshore generating stations.
Section 35: Directions in relation to projects of national significance
106.This section provides that the Secretary of State may direct that an application made to the relevant authority for a consent or authorisation mentioned in section 33(1) or (2) should be referred to the Commission, which will then treat it as an application for development consent. The Secretary of State can make such a direction only if the development is, or forms part of, a project in one of the fields mentioned in subsection (2) of section 35, the development would be wholly in England (or adjacent waters) and she considers that the project is of national significance. The Secretary of State may also make a direction in relation to more than one project in the same field if she believes that collectively they are of national significance. The Secretary of State must give reasons for making a direction under this section.
107.If the Secretary of State is considering making such a direction, she may direct the relevant authority to take no further action until she has reached her decision.
Section 36 and Schedule 2: Amendments consequential on development consent regime
108.This section and the Schedule which it introduces make consequential amendments to existing consent regimes. For the most part, these consequential amendments clarify that where development consent is required for a project under this Act, requirements for other consents no longer apply. In particular:
Green Belt (London and Home Counties) Act 1938: restrictions on the erection of buildings no longer apply where the project requires development consent under the Planning Act.
Pipe-lines Act 1962: authorisation is no longer required from the Secretary of State in order to construct a cross-country pipe-line where the project requires development consent under the Planning Act.
Harbours Act 1964: it will no longer be possible to make harbour revision orders or harbour empowerment orders to permit development for a project that requires development consent under the Planning Act.
Gas Act 1965: it will no longer be possible to make storage authorisation orders to permit development for a project that requires development consent under the Planning Act. Where an underground gas storage is covered by an order granting development consent, the Secretary of State will no longer be able to prevent mining and other operations in the vicinity of the underground gas storage, set safety conditions or order works to remedy a breach of a protective area.
Energy Act 1976: it will no longer be necessary to seek permission for a conversion of a power station to gas or petroleum fuel from the Secretary of State under the 1976 Act, where the project requires development consent under the Planning Act.
Ancient Monuments and Archaeological Areas Act 1979: scheduled monument authorisation is no longer required from the Secretary of State for works affecting scheduled monuments where the project requires development consent under the Planning Act.
Highways Act 1980: it will no longer be possible for the Secretary of State to make orders or construct highways under the provisions of the Highways Act 1980, where the project requires development consent under the Planning Act.
Electricity Act 1989: consent is no longer required from the Secretary of State to construct a generating station (see section 36 of the 1989 Act) or overhead electricity lines (see section 37 of the 1989 Act), where the project requires development consent under the Planning Act.
TCPA 1990: planning permission under section 57 is no longer required for a project that constitutes a nationally significant infrastructure project. Projects which require development consent will be exempted from the provisions in respect of tree preservation orders and the preservation of trees in conservation areas.
The Listed Buildings Act: listed building consent is no longer required from the Secretary of State for works affecting listed buildings where the project requires development consent under the Planning Act, and in the case of such a project, conservation area consent is no longer required for works involving demolition of buildings in a conservation area.
Planning (Hazardous Substances) Act 1990 (referred to in these notes as “the Hazardous Substances Act”): as part of an order granting development consent, the authority determining an application for consent may deem that the project has received hazardous substances consent. A hazardous substances authority may subsequently revoke or modify a hazardous substances consent so deemed.
New Roads and Street Works Act 1991: it will no longer be possible for the Secretary of State to make a toll order where the project requires development consent under the Planning Act.
Water Industry Act 1991: it will no longer be possible for the Secretary of State to make a compulsory works order in England where the project requires development consent under the Planning Act.
Transport and Works Act 1992: it will no longer be possible for the Secretary of State to make an order under section 1 or 3 of the 1992 Act that permits development for a project that requires development consent under the Planning Act.
