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Explanatory Notes to Planning And Compulsory Purchase Act 2004
2004 Chapter 5 |
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© Crown Copyright 2004 Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users. It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Planning And Compulsory Purchase Act 2004, ISBN 0105605042. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.
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These notes refer to the Planning and Compulsory Purchase Act 2004 (c.5) which received Royal Assent on 13th May 2004 PLANNING AND COMPULSORY PURCHASE ACT 2004EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Planning and Compulsory Purchase Act 2004 which received Royal Assent on 13th May 2004. They have been prepared by the Office of the Deputy Prime Minister in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. 3. The Act extends to England and Wales with certain provisions extending to Scotland. SUMMARY 4. The Planning and Compulsory Purchase Act 2004 is a key element of the Government's agenda for speeding up the planning system. The provisions introduce powers which allow for the reform and speeding up of the plans system and an increase in the predictability of planning decisions, the speeding up of the handling of major infrastructure projects and the need for simplified planning zones to be identified in the strategic plan for a region or in relation to Wales. The Act also provides for a number of reforms to make the handling of planning applications by both central government and local authorities quicker and more efficient. There are also provisions to make the planning Acts bind the Crown, fulfilling a long-standing commitment to end the Crown's immunity from the planning system. The provisions relating to compulsory purchase powers and compensation will liberalise the compulsory purchase and compensation regimes. They support policies relating to investment in major infrastructure and regeneration. BACKGROUND 5. The aim of the Act is to give effect to the Government's policy on the reform of the planning system, the principal features of which were set out in the policy statement Sustainable Communities - Delivering through Planning which was published in July 2002. That paper took forward proposals that were outlined in the Green Paper Planning: Delivering a Fundamental Change, published in December 2001. The policy on reform of the compulsory purchase system was set out in the Green Paper daughter document Compulsory Purchase and Compensation: delivering a fundamental change published in December 2001 and confirmed in the policy statement Compulsory Purchase Powers, Procedures and Compensation: the way forward published in July 2002. 6. In relation to Wales, planning is an area in respect of which functions are devolved to the National Assembly for Wales. The Assembly Government published its own consultation paper: Planning Delivering for Wales in January 2002. The Act gives effect to the Assembly Government's policy, formulated in the light of responses to the consultation document, as announced by the Assembly Minister for Environment in November 2002. THE ACT 7. The Act consists of 9 parts. These are:
OVERVIEW 8. Part 1 (which applies only to England) provides that there will be a regional spatial strategy (RSS) for each region. Such regional planning guidance (RPG) as is prescribed by the Secretary of State will become the RSS. In addition, the Secretary of State has power to recognise a body as the regional planning body (RPB) for a region. The RPB must keep the RSS under review and monitor and report on its implementation. The RPB must seek advice from county councils and other types of authorities with strategic planning expertise about keeping the RSS under review and monitoring its implementation and preparing draft revisions of the RSS, and these authorities must provide the advice. The RPB must prepare a draft revision of the RSS when it appears to be necessary or expedient to do so, or at such time as is prescribed. Where the RPB decides to prepare different policies for different areas within the region, the detailed proposals must first be made by an authority with strategic planning expertise. The RPB must prepare, publish and comply with a statement of its polices for involving persons with an interest in preparing draft revisions. The Part makes general provision covering the preparation of draft revisions of the RSS, their submission to the Secretary of State and the holding of examinations in public of draft revisions. The Secretary of State has various default powers and may exercise functions of the RPB where there is no such recognised body in a region. The Secretary of State may by regulations make provision in connection with the exercise by any person of functions under this Part. 9. Part 2 (which also applies only to England) provides for the preparation of local development documents (LDDs). These will replace local plans, unitary development plans and structure plans. Every local planning authority (as defined in the Part) must prepare and maintain a local development scheme. A county council in respect of any part of their area for which there is a district council must prepare and maintain a minerals and waste development scheme. 10. These schemes will set out what LDDs the authority will prepare, their timetable for preparation and whether they are to be prepared jointly with one or more other authorities. County councils in respect of any part of their area for which there is a district council will be able to participate in the preparation of LDDs concerning matters other than minerals and waste by entering a joint committee with one or more local planning authorities. LDDs must be prepared in accordance with the relevant scheme and must be in general conformity with the RSS or the spatial development strategy for London, as appropriate. The Part makes general provision as to the preparation, withdrawal, adoption and approval of LDDs and the examination of development plan documents. The Secretary of State has powers of intervention and may by regulations make provision in connection with the exercise by any person of functions under this Part. 11. Part 3 deals with development. It updates the definition of the development plan to take account of the changes to the planning system made by the Act. It also imposes on those with plan-making functions under Parts 1, 2 and 6 a duty to exercise their functions with the objective of contributing to the achievement of sustainable development. 12. Part 4 deals with development control. Local planning authorities will be able to introduce local permitted development rights by way of local development orders. The Secretary of State will be able to make development orders and regulations prescribing the procedure for making applications for planning permission and certain consents; to prescribe fees and charges for a wider range of planning functions; and set a timetable for "called in" and recovered appeals and connected decisions. The Part provides that local planning authorities may decline to determine applications. It also changes the duration of planning permission and consents. It deals with major infrastructure projects in England, in relation to which the Secretary of State - if he considers the development to be of national or regional importance - may direct that a planning application must be referred to him rather than dealt with by the local planning authority. The Part introduces a new scheme of planning contributions to replace existing provisions relating to planning obligations. The Part amends the provisions for simplified planning zones contained in the Town and Country Planning Act 1990 so that they can only be made where the need for such a zone has been identified in the RSS (or, in relation to Wales, where criteria prescribed by the National Assembly are met). It provides local planning authorities with a new enforcement power to serve temporary stop notices. It introduces a duty for persons or bodies which are required to be consulted to respond to consultation requests within a specified time. It also brings the creation of additional floorspace within buildings under planning control. 13. Part 5 deals with the correction of errors. The Secretary of State or an inspector may, subject to various conditions, correct errors contained in decision letters where a decision document is issued which contains a correctable error. The Secretary of State or the inspector may correct the letter where he is requested to do so in writing or where he writes to the applicant explaining that he is considering making a correction. The applicant (and, if the applicant is not the owner of the land, the owner of the land as well) must agree to the correction. 14. Part 6 contains Wales-specific sections. It reforms the development plan system in Wales, where a single-tier system of local government and a uniform pattern of unitary development plans were introduced by the Local Government (Wales) Act 1994. The basic pattern of development plans (to be known as local development plans) is to be retained. Each local planning authority in Wales will be required to prepare a local development plan, to review it at intervals and to revise it as necessary. Local development plans will be simpler, more concise documents than the present unitary development plans and will focus on the authority's objectives for the use and development of land in their area and their general policies for implementing them (but with scope for more detailed policies in key localities). 15. Procedures for preparing and revising plans will be simplified. Public participation in formulating plans and expedition in taking them through to adoption are to be maximised through community involvement schemes and timetables agreed between the local planning authority and the National Assembly for Wales (or, if agreement cannot be reached, determined by the Assembly). A shift in the focus of an independent examination of the local development plan towards its overall soundness is intended to encourage examinations to become less adversarial. Provision is also made for the National Assembly for Wales to prepare and publish a national spatial plan for Wales (the "Wales Spatial Plan") to which local planning authorities will be required to have regard when preparing their plans. 16. Part 7 Chapter 1 (sections 79 - 89) ends Crown immunity in the planning system and makes special provision in relation to certain planning applications by or on behalf of the Crown and in respect of enforcement of planning control in relation to the Crown in England and Wales. 17. Part 7 Chapter 2 (sections 90 to 98) makes similar substantive provision for the Scottish planning Acts as does Chapter 1 for England and Wales. The drafting and terminology may differ from that in Chapter 1 because of differences in the text and terminology of the Scottish legislation. 18. The only provisions not carried through are those for transitional arrangements to the Scottish hazardous substances Act and for Notices of Proposed Development. These will be made by order of the Scottish Ministers using the power in section 119(2). 19. Part 8 amends the existing power of local authorities, joint planning boards and National Park authorities under section 226(1)(a) of the Town and Country Planning Act 1990 to acquire compulsorily land which is suitable for and required in order to secure the carrying out of development, re-development or improvement. They will be able to acquire land by compulsory purchase if they think that it will facilitate the carrying out of development, re-development or improvement on or in relation to the land, on condition that such acquisition will be of economic, social or environmental benefit to their area. 20. This Part also amends procedural provisions in the Acquisition of Land Act 1981 for authorising the compulsory purchase of land. A wider category of persons with an interest in land will be entitled to have their objections to the authorisation heard. There is to be a written representations procedure for considering objections to compulsory purchase authorisation when all objectors entitled to be heard consent. There is to be a power to authorise compulsory purchase in stages and, in the case of unopposed compulsory purchase orders which are not made on behalf of a Minister or the National Assembly for Wales for the confirming authority to transfer its determination to the acquiring authority. Further provisions in this Part enable an acquiring authority to requisition for information as to the ownership and occupation of land in certain cases. 21. The Part also contains provisions relating to compensation in respect of land that is compulsorily purchased. These set out the date on which property is to be valued for compensation purposes. In addition, a new statutory scheme is introduced which, subject to certain exceptions, provides for "loss payments" for those owners and occupiers who are not entitled to receive payments under the home loss scheme set out in sections 29 to 33 of the Land Compensation Act 1973. 22. Part 9 deals with miscellaneous and general issues. TERRITORIAL APPLICATION: WALES AND SCOTLAND 23. Parts 1 and 2 apply only to England and Part 6 applies only to Wales. Part 7 Chapter 1 applies to England and Wales and Part 7 Chapter 2 applies to Scotland. Otherwise, provisions apply (unless otherwise indicated) to both England and Wales. References in these Notes to the Secretary of State are therefore intended (other than in Parts 1 and 2 or where the context otherwise requires) to refer also to the National Assembly for Wales in relation to Wales. COMMENTARY ON SECTIONS PART 1: REGIONAL FUNCTIONS Section 1: Regional spatial strategy 24. Section 1 provides for a regional spatial strategy (RSS) in every region other than London. The RSS must set out the Secretary of State's policies (however expressed) in relation to the development and use of land in the region. These policies must be concerned with the use and development of land, but they need not be directly related to the grant or refusal of planning permission. They could include, for example, congestion charging policies. The RSS can include different policies for different areas within the region. 25. Existing regional planning guidance issued by the Secretary of State will become the RSS. But it is only the regional planning guidance which the Secretary of State prescribes in regulations which will become the RSS. This is to enable the Secretary of State to decide, where there is a range of regional planning guidance in a region, which should become the RSS. Section 2: Regional planning bodies 26. Section 2 enables the Secretary of State to recognise a body as the regional planning body (RPB) for a region (and to withdraw that recognition). The Secretary of State must not recognise a body as the RPB unless at least 60% of its members are members of county councils or local planning authorities. Where there is no such body the Secretary of State may himself exercise those functions of an RPB which he thinks appropriate. But it would not be appropriate, for example, for the Secretary of State to report to himself under section 3 on the implementation of the RSS. 27. A change in the membership of a body which is not incorporated does not affect the validity of the Secretary of State's recognition of that body as an RPB. This will prevent the need for the Secretary of State to issue a new direction recognising a body as the RPB every time a member of an unincorporated RPB is replaced. Section 3: RPB: general functions 28. Section 3 defines the general functions of the RPB. In particular, the RPB must keep the RSS and matters affecting development in its region under review. It must also monitor and report on the implementation of the RSS. Section 4: Assistance from certain local authorities 29. This section requires an RPB to seek advice from county councils and other types of authorities with strategic planning expertise in keeping the RSS under review and monitoring its implementation and preparing draft revisions of the RSS. These authorities must give this advice. The RPB may make arrangements with these authorities and district councils for the authority or council to discharge functions on its behalf. The section allows the RPB to reimburse an authority for any expenditure incurred under such an arrangement. Section 5: RSS revision 30. Section 5 explains when a draft revision of the RSS is to be prepared and what matters the RPB must consider when preparing a revision. Along with the draft revision the RPB must prepare, publish and submit a sustainability appraisal of the draft revision, together with any other documents prescribed in regulations, to the Secretary of State. Where the RPB decides to prepare different policies for different areas within the region, the detailed proposals must first be made by an authority with strategic planning expertise. The RPB may withdraw a draft revision at any time before it submits it to the Secretary of State. Section 6: RSS: community involvement 31. Section 6 requires the RPB to prepare, publish and comply with a statement of its policy for involving interested parties in its functions in relation to preparing a draft RSS revision. Sections 7-10: RSS 32. These sections set out the Secretary of State's functions in relation to a draft revision of an RSS and provide, as part of the consultation process, for the holding of an examination in public. 33. Following submission of a draft revision to the Secretary of State, anyone may make representations on the draft and the Secretary of State may arrange for an examination in public. It is the Secretary of State's intention that it will only be in the exceptional circumstances of a minor revision, and subject to the criteria set out in section 7(4), that there will not be an examination. The examination is held before a person appointed by the Secretary of State who must report his findings to the Secretary of State. No one has a right to be heard at the examination. The Secretary of State must consider the report of the examination together with any representations made on the draft RSS (to the extent that these have not already been considered during the course of an examination) before publishing any changes he proposes to make with the reasons for them. After considering any representations on the draft changes, the Secretary of State must publish the revision to the RSS with reasons for any changes unless he withdraws it. 34. The Secretary of State may direct an RPB to prepare a draft revision of the RSS and may specify which aspects of the RSS are to be revised and within what time frame. Where the RPB fails to act in accordance with such a direction, or where the RPB fails to comply with certain regulations made by the Secretary of State, the Secretary of State may prepare a draft revision and make regulations as to the manner in which this will occur. The Secretary of State may revoke all or parts of an RSS if he thinks it necessary to do so. Section 11 - 12: Regulations and Supplementary 35. Section 11 gives the Secretary of State power to make regulations in connection with the exercise by any person of functions under Part 1. Section 12 provides that the Secretary of State for the purposes of Part 1 is that Secretary of State with general responsibility for planning policy. (The only exception is in relation to national policies and advice contained in guidance to which an RPB must have regard in preparing draft RSS revisions, which may be issued by any Secretary of State.) It defines a region in accordance with the Regional Development Agencies Act 1998. PART 2: LOCAL DEVELOPMENT Section 13: Survey of area 36. Section 13 provides for the survey function of local planning authorities. An authority must keep under review matters which are likely to affect the development of their area or the planning of its development. An authority may also keep matters in any neighbouring area under review, to the extent that those matters might affect the area of the authority, and in doing so they must consult the authority for the neighbouring area concerned. Section 14: Survey of area: county councils 37. Section 14 provides for the survey function of county councils. County councils are to keep matters relating to minerals and waste development under review, as well as certain matters which are required to be kept under review under section 13. The Secretary of State may make regulations requiring or may direct a county council to keep certain matters under review and to make the results of the review available to such persons as he specifies. With regard to this latter function it is immaterial whether the matters relate to minerals and waste development. Section 15: Local development scheme 38. Section 15 sets out the roles of the local planning authority and the Secretary of State in relation to an authority's local development scheme. Every local planning authority must prepare and maintain a local development scheme specifying the documents that will be local development documents, their subject matter and area and the timetable for their preparation and revision. The local planning authority must submit their local development scheme to the Secretary of State who can direct changes to the scheme as he thinks appropriate. He can also make regulations for bringing the scheme into effect. Section 16: Minerals and waste development scheme 39. Section 16 provides for county councils to prepare and maintain minerals and waste development schemes and explains the way in which Part 2 of the Act applies to those schemes. The major difference between a local development scheme and a minerals and waste development scheme is that the provisions in Part 2 on joint committees will not apply to documents prepared under the latter. Section 17: Local development documents 40. Section 17 makes provision relating to local development documents (LDDs). A local planning authority must include as LDDs in their local development scheme those documents which are prescribed and their statement of community involvement. The LDDs together must set out the authority's policies relating to the development and use of land in their area. In the case of LDDs included in a minerals and waste development scheme, the LDDs together must also set out the authority's policies relating to minerals and waste development. The Secretary of State may prescribe the form and content of LDDs and which descriptions of those documents are development plan documents (which are to be subject to the process of independent examination and which will form part of the authority's development plan). Section 18: Statement of community involvement 41. Section 18 defines a local planning authority's statement of community involvement as a statement of their policy for involving interested parties in matters relating to development in their area. The statement will apply to the preparation and revision of LDDs and to the exercise of the authority's functions in relation to development control. The statement will be subject to independent examination as if it were a development plan document. Section 19: Preparation of local development documents 42. Section 19 sets out the requirements for preparing LDDs. The local planning authority must prepare each LDD in accordance with their local development scheme. The authority must have regard to the matters listed in the section, including national policies, the RSS for their region and their community strategy, and must carry out a sustainability appraisal of the proposals in each document. Once the authority have adopted their statement of community involvement they must comply with it in preparing any local development document. Section 20: Independent examination 43. Section 20 requires the local planning authority to submit every development plan document to the Secretary of State for independent examination and provides for the arrangements and procedures for the examination. The purpose of the examination will be to determine whether the development plan document is sound and whether it satisfies the requirements relating to its preparation. Any person who makes representations which ask for any matter in the development plan document to be changed has a right to appear in person at the examination. The examination must be carried out by a person appointed by the Secretary of State and that person must make recommendations, which the local planning authority must publish. Section 21: Intervention by Secretary of State 44. Section 21 allows the Secretary of State, if he thinks an LDD is unsatisfactory, to direct a local planning authority to modify the LDD before it is adopted. It also allows the Secretary of State to direct that a development plan document or any part of it is submitted to him for his approval. If an independent examination of that document is already in process, the person appointed to carry out that examination is required, if he has not already made his recommendations, to report to the Secretary of State, who must publish the person's recommendations. If the Secretary of State's direction is given before the document has been submitted for examination, the Secretary of State is required to hold an examination. | |
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