DPRR/12-13/66
Growth and Infrastructure Bill
Memorandum by the Department for Communities and Local
Government to the Delegated Powers and Regulatory Reform
Committee
INTRODUCTION
1.
This Memorandum sets out the provisions in the Growth and Infrastructure
Bill which confer delegated powers on the Secretary of State and others; explains
why the power has been taken and the nature of, and the reason for the procedure
selected.
PURPOSE OF THE BILL
2.
The Bill is to give effect to the Government’s growth agenda. It contains a
range of measures designed to achieve growth.
DEVOLUTION
3.
The majority of the amendments are to legislation that extends to England and
Wales.
4.
The following clauses also extend to Scotland. Clause 17 relates to conditions
on licences made under section 7B of the Gas Act 1986. Clauses 18 and 19relate
to consents granted under section 36 and 37 of the Electricity Act. All of these
relate to reserved matters, although clause 18 also confers new functions on
Scottish Ministers (matching the new functions conferred on the Secretary of State
in respect of England and Wales in that clause). Clause 19 amends Scottish
legislation on deemed planning permission associated with such consents.
Scottish Ministers have sponsored a legislative consent motion in the Scottish
Parliament on the devolved aspects of clauses 18 and 19. Welsh Ministers have
agreed to do the same as regards the application of clause 19 to Wales. Clause 20
extends to Scotland as the Planning Act 2008, which it amends, does. Clause 26
amends the Local Government Finance Act 1988 in respect of the postponement
of the compilation of Welsh non-domestic rating lists, and the Welsh Ministers
have agreed in principle to sponsor a legislative consent motion in the National
Assembly for Wales for the devolved aspects of the clause.
5.
Clause 8 amends section 109 of the Communications Act 2003 which relates
to the electronic communications code. These amendments also extend to
Scotland and Northern Ireland, and relate to a reserved matter.
6.
Clause 8 also makes amendments to the Nature Conservation and Amenity
Lands (Northern Ireland) Order 1985, which extends only to Northern Ireland, and
to the National Parks (Scotland) Act 2000, which extends only to Scotland. In
each case the amendment relates to a reserved matter.
7.
Most of the amendments made by this Act apply to England only. Planning
matters are devolved, so provisions relating to town and country planning apply to
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England only. Matters relating to the provision of major infrastructure and
employment are reserved, so will generally have a wider application. Where
amendments need to be made to a devolved matter to ensure provision of
infrastructure, those amendments will also have a wider application. Those
provisions that apply beyond England are detailed below.
8.
The following provisions make amendments that also apply in relation to
Wales and Scotland. Clause 17 relates to conditions on licences made under
section 7B of the Gas Act 1986. Clause 18 relates to consents granted under
section 36 of the Electricity Act. Clauses 18 and 19 make amendments in relation
to sections 36 and 37 of the Electricity Act 1989, section 90 of the Town and
Country Planning Act 1990 and section 57 of the Town and Country Planning
(Scotland) Act 1997 (see further paragraph 4 above).
9.
Clause 8 relates to the electronic communications code and is designed to
facilitate the provision of communications infrastructure. It amends section 109 of
the Communications Act 2003, which relates to the electronic communications
code. Those amendments also apply to Wales, Scotland and Northern Ireland, and
relate to a reserved matter.
10.
That clause also amends section 11A of the National Parks and Access to the
Countryside Act 1949; and section 85 of the Country side and Rights of Way Act
2000. Both of those provisions also apply to Wales. Clause 8 also makes
amendments to the Nature Conservation and Amenity Lands (Northern Ireland)
Order 1985, which applies only to Northern Ireland.
11.
Clause 12 and 15 contain provisions which, in addition to amending the law
applicable to England, simply restate the existing law applicable to Wales.
SUMMARY OF THE BILL
12.
The Bill has the following contents:
(a) Promoting growth and facilitating provisions of infrastructure and related
matters;
(b) Other Infrastructure Provisions;
(c) Economic Measures; and
(d) General Provisions.
Planning and Related Matters
Clause 1 : Option to make planning application directly to Secretary of State
Power conferred on: Secretary of State
Power exercised by: order
Procedure: negative
13.
This clause inserts section 62A into the Town and Country Planning Act 1990.
Section 62A(1)(b) enables the Secretary of State to prescribe [descriptions /
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classes] of development to which the provisions will apply. Persons wishing to
seek planning permission for such developments will, if their local planning
authority is designated as poorly performing, be entitled to apply direct to the
Secretary of State.
14.
This power is required to ensure the ability to apply for planning permission
directly to the Secretary of State is available to the appropriate size of
development. As there are thousands of planning applications to each local
planning authority each year it is likely to be impracticable to allow all planning
applications for a designated authority to be considered by the Secretary of State
and it is therefore necessary to restrict the developments to which the new power
will apply. The current intention is to restrict this to prescribed “major
developments” (a term already used in planning secondary legislation).
15.
The new section 62A(4) also enables the Secretary of State to prescribe which
types of applications, beyond those expressly listed in the provision, are capable
of being ‘connected applications’. Where a person applies for planning
permission directly to the Secretary of State they may also wish to make other
applications under the planning Acts which are related to the development eg
listed buildings consent. The power to prescribe the types of application which
may be connected applications is necessary in order to add new types of
applications in the future if considered necessary.
16.
The negative procedure is considered appropriate for this order, in line with
other similar powers in the Town and Country Planning Act 1990.
Clause 1 Schedule
Power conferred on: Secretary of State
Power exercised by: regulations
Procedure: affirmative
17.
This Schedule, at paragraph 10, inserts a new subsection into section 303 of
the Town and Country Planning Act 1990. The new section 303(1A) enables the
Secretary of State to charge fees in relation to applications made to him under
section 62A (inserted by clause 1). Section 303(1A) enables provisions in relation
to these fees to be set out in regulations. It would not be appropriate for the level
of fees and the circumstances in which they are to be charged to be specified on
the face of the 1990 Act in section 303(1A). In keeping with existing powers in
section 303 the fees will be set by secondary legislation.
18.
The affirmative procedure is considered appropriate for these regulations, in
line with other fee setting powers in section 303 the Town and Country Planning
Act 1990.
Clause 2 : Planning proceedings: costs etc
Power conferred on: Secretary of State/Lord Chancellor
Power exercised by: Regulations/Rules
Parliamentary scrutiny: Negative
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19.
Subsection (5) amends an existing power in section 323 of the Town and
Country Planning Act 1990 under which the Secretary of State makes regulations
setting out the procedures to be followed at planning appeals conducted by written
representations. The new power will apply in respect of provisions in the 1990
Act, to be prescribed, which apply section 250(4) (power to recover Ministers’
costs from parties) and section 250(5) (power to award costs between parties) of
the Local Government Act 1972. The new power is needed to allow procedures to
set out the circumstances in which costs may be awarded between parties or
recovered from the parties by the Secretary of State. We envisage the power
being used to make provision about what behaviour or actions by parties might
result in costs being awarded or recovered.
20.
Subsection (6) makes similar amendments to subsection (5), but to an existing
power in section 9 of the Tribunals and Inquiries Act 1992 under which the Lord
Chancellor may make procedural rules for planning appeals conducted as an
inquiry or hearing.
21.
Both existing powers are subject to negative resolution procedure, and this
will not change.
Clause 4 : Permitted development rights for changes of use: prior approvals
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary scrutiny: Negative
22.
Clause 4(1) amends an existing power in section 60 of the Town and Country
Planning Act 1990, under which planning permission may be granted by a
development order subject to conditions. Such planning permissions are known as
“permitted development rights”. Section 60(2) allows development orders to
grant planning permission for the erection, extension or alteration of buildings on
the condition that the local planning authority is given the opportunity to approve
the design or external appearance of the buildings. This enables certain aspects of
the permitted development right to be delegated to the local planning authority, so
that local conditions and sensitivities can be taken into account. If the local
planning authority does not approve the proposals, the permitted development
right no longer applies and a full planning application has to be submitted for the
development.
23.
New subsection (2A) of section 60 makes similar provision for permitted
development rights in respect of change of use of premises. It enables
development orders to require the approval of the local planning authority or the
Secretary of State for the new use, or in respect of matters relating to the new use.
For example, in relation to a change of use which might generate extra traffic and
be noisier than the existing use, the local planning authority may be given the
opportunity to approve a transport strategy prepared by the developer, and a plan
to address noise impacts.
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24.
The existing power is subject to negative resolution procedure, and this is
considered appropriate for new subsection (2A).
Clause 6 Modification or discharge of affordable housing requirements
25.
Clause 6 provides a new application for seeking variation of an agreement
made under section 106 of the 1990 Act. The procedure relates only to the
affordable housing requirement in a section 106 agreement, and would be on the
basis that the affordable housing requirement makes the development
economically unviable. This is supplementary to the existing procedures for
varying a section 106 agreement in sections 106A and 106B.
Clause 6 : section 106BA(8)
Powers conferred on: Secretary of State
Powers conferred by: guidance
Procedure: none
26.
We have put a requirement on authorities that they must have regard to
guidance issued by the Secretary of State. In particular, the Department is
intending to issue guidance on how to determine economic viability, to provide
assistance both to applicants and decision makers. Economic viability is
inherently dependent on local circumstances, so requires a large degree of
flexibility in its application. On that basis, the Department does not consider that it
would be appropriate to seek to define it in legislation. This follows the approach
to viability taken in relation to the community infrastructure levy. It is referred to
in sections 205(2) and 211(2)(b) of the Planning Act 2008, and regulation 14(1)(b)
and (3) of the Community Infrastructure Levy Regulations 2010, while guidance
sets out what it means.
Clause 6(1): section 106BA(9), (11) and section 106BB(3) and (4) to the extent that it
applies section 106BA(9) and (11)
Powers conferred on: Secretary of State
Powers conferred by: regulations
Procedure: negative
27.
We are taking powers to prescribe the detailed procedures around making
applications and appeals. This reflects the approach taken in relation to the
existing applications and appeals process in sections 106A(7) and (9), and
106B(3) and (4) of the Town and Country Planning Act 1990. We consider that it
is more appropriate for the detailed provisions around the form and content of
applications, and notice requirements, to be in regulations rather than on the face
of the legislation. Given the procedural nature of the regulations, we consider that
the negative procedure will provide a sufficient level of scrutiny.
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Clause 6(4)
Powers conferred on: Secretary of State
Powers conferred by: order
Procedure: affirmative
28.
We are taking a power to repeal new sections 106BA to 106BC by order.
These proposals form a key part of the Department’s efforts to get the economy
moving again, so are being put in place to address the particular economic
situation that exists at the moment. These measures are relatively drastic in that
they allow for LPAs’ affordable housing policies to be overruled.
29.
When the economy recovers, we would not want these provisions to be used to
reduce a developer’s affordable housing requirement without the agreement of the
LPA. We recognise that this is a relatively unusual power, and that primary
legislation would not normally be repealed by secondary legislation. For that
reason, we consider that the use of this power should be subject to the additional
scrutiny of the affirmative procedure. This follows the approach taken in section
88 of the Arbitration Act 1996 (power to repeal or amend sections 85 to 87).
Clause 6: section 106BA(13)
Power conferred on: Secretary of State
Power exercised by: order
Procedure: affirmative
30.
We are taking a power for the Secretary of State to amend the definition of
“affordable housing requirement” through order subject to the affirmative
procedure. It is necessary to take this power to ensure that the provision is able to
adapt to new forms of affordable housing, and new ways of providing that housing
contained in section 106 agreements.
31.
The existing definition is drafted deliberately widely to capture as many kinds
of affordable housing as possible. The purpose of the definition is to be inclusive,
not exclusive. We want to avoid is a situation where the provision operates
unfairly by not applying to a particular kind of affordable housing requirement.
32.
The new definition can apply to section 106 agreements entered into before it
came into force. This is necessary to ensure that the provision can operate
effectively. The purpose of this clause is to unblock stalled sites which have
planning permission and associated section 106 agreements. For the new
provisions to be able to unblock those sites, they must be able to apply to those
existing section 106 agreements. The same is true in relation to an amendment of
the definition. The power would be used if the current definition did not enable
certain sites to be unblocked; the change in the definition can only allow this if it
can apply to existing section 106 agreements that are stalling those sites.
33.
This is a power to amend the primary legislation, albeit in a limited context.
As such, we consider it appropriate that the power should be subject to
Parliamentary scrutiny through the affirmative procedure.
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Clause 7 : Disposals of land held for planning purposes
Power conferred on: Secretary of State
Power exercised by: consent
Procedure: none
34.
Section 233(1) of the 1990 Act enables a local authority to dispose of land
held for planning purposes in order to secure the purposes set out in paragraphs (a)
and (b). Consent of the Secretary of State is required where the disposals are of
common land (section 233(2)) or the disposal is to be for a consideration less than
the best that can reasonably be obtained (section 233(3)). Unlike other local
authority disposal of land powers that are subject to Secretary of State consent,
section 233 does not enable the Secretary of State to grant consent generally by
way of descriptions of types of transactions or local authorities. (See the power to
grant general consent in relation to housing land under section 34 of the Housing
Act 1985 and disposals of other local authority land under section 128 of the
Local Government Act 1972.) Local authorities must therefore seek consent on
each occasion it intends to dispose of land held for planning purposes at less than
best consideration.
35.
Clause 7 provides for the Secretary of State to grant consent to local
authorities to dispose of land held for planning purposes generally. The power is
similar to that under section 128(1) of the Local Government Act 1972. The
power is required to reduce the administrative burden on local authorities and the
Secretary of State by enabling consent to be granted for specified descriptions of
transactions that are unlikely to raise concerns regarding the disposal of publiclyowned assets (scrutiny of such transactions would still be carried out by local
authority auditors).
Clause 8 : Electronic Communications Code: the need to promote growth
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary scrutiny: Negative
36.
Subsection (1) of this clause amends the delegated power of the Secretary of
State to make regulations under section 109 of the Communications Act 2003. It
adds the need to promote economic growth to the list of considerations set out in
section 109(2) to which the Secretary of State must have regard when making
regulations under section 109(1) imposing conditions and restrictions on the
application of the electronic communications code. The proposed amendment is
being made in order to give legal certainty to the power of the Secretary of State
to make regulations relaxing the conditions for the installation of electronic
communications apparatus. The Parliamentary procedure applicable to regulations
under section 109(1) will remain negative resolution (see section 402(2) of the
2003 Act). The power to make regulations under section 109 is, and will remain,
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vested in the Secretary of State in respect of the whole of the United Kingdom:
there are no devolution issues.
Clause 11: Stopping up or diversion of public paths
37.
Clause 11 inserts a new subsection 1A into section 257 of the Town and
Country Planning Act 1990 (the ‘1990 Act’). It is sometimes necessary to stop up
or divert a public path to enable a development to be carried out. Presently, where
permission is required under Part III of the 1990 Act, section 257(1) requires a
competent authority to wait until permission is granted before making the
necessary change to the public path. The new subsection 1A confers a power on a
competent authority to make an order changing a public path after an application
under part III has been made, and where the authority is satisfied that it would be
necessary if the application were granted to enable the development to be carried
out.
38.
Clause 11 also inserts a new subsection 1A into section 259 of the 1990 Act.
This provides that an order made under section 257(1A) may not be confirmed
unless the authority is satisfied that planning permission has been granted, and the
change is necessary to enable development to be carried out in accordance with
the permission. The confirmation of the order is the act which brings it into force
(section 259(1)).
39.
Part I of Schedule 14 to the 1990 Act sets out the procedures for the
confirmation of orders made under section 257. Generally these will entail:
publication; consultation; referral of opposed orders to the Secretary of State; an
inquiry or hearing; confirmation of orders with or without modification. In
practice opposed orders are referred to the Planning Inspectorate which holds an
inquiry and confirms the order. The orders are not generally subject to any
Parliamentary scrutiny. Where an order is objected to by statutory undertakers on
grounds it creates a new path that affects their undertaking, a special
Parliamentary procedure applies.
In practice, statutory undertakings are rarely affected, as the order-making authority is
likely to find it simpler and cheaper to come up with an alternative proposal. The
existing procedure for confirmation of orders made under section 257(1) of the Act
will apply to orders made under subsection (1A) of the Act.
The effect of a stopping up order is to extinguish the right all members of the public
enjoy to pass and re-pass over the path. The effect of a diversion order is twofold. It
creates a new public path, and extinguishes the public right over so much of the
existing path as is necessary to enable the diversion. An order changing a public path
is therefore arguably legislative in character as a “creation and promulgation of a
general rule of conduct without reference to particular cases”.
40.
The purpose of the new provisions is to enable an authority to consider
confirmation of an order at the same time as the Part III planning permission
application is being considered. The change ought to benefit developers by
reducing delay and uncertainty in the overall process of obtaining planning and
non-planning consents.
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41.
The Department considers the procedure which generally applies (paragraph
31) is appropriate and proportionate. Although in theory an order has an effect on
all members of the general public, in practice the effect is local: it mainly affects
members of the relevant local community.
42.
The exercise of the new power is subject to the limits described in paragraph
30: no order made under the new provision may have any effect until such time as
it is clear that a development is permitted to proceed, or unless the authority
confirming it is satisfied that it is necessary to enable a development to proceed.
43.
The same procedures for the confirmation of orders made under section 257
apply. These are tried and tested, and it would be impractical to have different
procedures for confirmation of orders under s.257(1) and subsection 1A.
Clause 12 Declarations negativing intention to dedicate way as highway
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative
44.
Clause 12 amends section 31(6) of the Highways Act 1980 (the ‘1980 Act’) to
allow for Regulations to prescribe the forms and procedures around the deposit of
a map and declarations, and to make provision in relation to the payment of fees.
Section 31(6) enables a landowner to deposit a map and statement with the
highway authority, showing admitted public paths, and then to make a declaration
that the landowner has no intention to allow any other part of the land to become
subject to a public right of way. The declaration is generally effective in rebutting
any claim to a right of way on the landowner’s land acquired by long use during
the period when the declaration is in effect. Clause 12 amends the law applicable
to England and contains a restatement of the existing law applicable to Wales. It
does not amend the law applicable to Wales.
45.
Subsection (3) of clause 12 inserts a new subsections (6A) , (6B) and (6C)
into section 31 of the 1980 Act, which provides for the Secretary of State to set
out the form of the map, statement and declaration in regulations as well as the
steps the appropriate council must take in relation to the map, statement and
declaration.
46.
Subsection (6) of clause 12 also inserts a new subsection (13) into section 31,
which allows the Secretary of State to make regulations to make provision for:
(a) a statement or declaration required for the purposes of subsection (6) to be
combined with a statement deposited under section 15A of the Commons Act
2006 (the ‘2006 Act’) to counter registration of the land as a town or village
green; and
(b) the fees payable in relation to the deposit of a map and statement and
subsequent declaration.
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47.
Subsection (15) of clause 12 allows regulations made under this clause to
make transitional or saving provision and different provision for different
purposes or areas.
48.
As these are matters of administrative detail which may be subject to change,
the Department considers it appropriate and proportionate for these powers to be
exercisable by way of negative resolution procedure.
Clause 13 Registration of town or village green: statement by owner
49.
Clause 13 inserts a new section 15A into the 2006 Act. Section 15A(1)
provides that (in relation to land in England) a landowner may deposit a statement
and map with a commons registration authority for the purpose of protecting their
land from registration as a town or village green. One of the statutory criteria for
registering land as a town or village green under section 15(1) of the 2006 Act is
that the land be used as of right for lawful sports and pastimes for a period of
twenty years. The effect of such a deposit is to bring to an end any period of use
‘as of right;’ (i.e. without permission, secrecy or force) for lawful sports and
pastimes on the land to which the statement relates.
50.
Section 15A(1), (7)(a) and (9) provides for the Secretary of State to set out the
form of such a statement in regulations including allowing provision for a
statement required for the purposes of section 15A to be combined with a
statement or declaration deposited under section 31(6) of the Highways Act 1980.
As this is a matter of administrative detail which may be subject to change the
Department considers it appropriate and proportionate for this power to be
exercisable by way of negative resolution procedure.
Subsections (3), (7)(b) and (9) of new section 15A of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative
51.
Section 15A (3), (7) (b) and (9) provides for the Secretary of State to
prescribe in regulations the form of a map accompanying the statement
deposited with a commons registration authority under this section. The map
identifies the land to which the statement relates. Regulations under
subsection (7)(b) may provide for subsection (3) to be satisfied by the
statement referring to a map previously deposited under section 31(6) of the
1980 Act. The Department considers it appropriate and proportionate for the
requirements for such a map to be set out in regulations subject to the negative
resolution procedure since this is a matter of administrative detail which may
be subject to change.
Subsections (6) and (9) of new section 15A of the 2006 Act
Power conferred on: Secretary of State
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Power exercisable by: Regulations
Parliamentary procedure: Negative
52.
Section 15A(6) and (9) provides for the Secretary of State to set out in
regulations the steps a commons registration authority must take in relation to the
statement and accompanying map it receives, and the manner and period in which
such steps must be taken. An example of how this power may be used is to
require a commons registration authority to give notice of the deposit of a
statement and map, in order to inform the local community that the landowner has
brought to an end any existing period of use as of right over the land to which the
statement relates, which may have triggered the grace period of two years under
section 15(3) of the 2006 Act in which an application to register the land as a town
or village green must be made..
53.
The power is exercisable by regulations subject to the negative procedure
which is consistent with similar existing powers related to other applications made
under the 2006 Act. The power covers matters of procedural detail which require
flexibility for amendment in the future.
Subsections (7) (c)) of new section 15A of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative
54.
Section 15A (c) provides for the Secretary of State to make provision in
regulations as to the fees payable in relation to the depositing of a statement with a
registration authority, including provision for a fee payable under the regulations
to be determined by the commons registration authority. As the level of any fees
may need to be amended to reflect changing circumstances, the Department
considers it appropriate and proportionate for fees to be prescribed in regulations
subject to the negative procedure. This procedure is consistent with other fee
making powers in the 2006 Act.
55.
As these are matters of administrative detail which may be subject to change,
the Department considers it appropriate and proportionate for these powers to be
exercisable by way of negative resolution procedure.
Subsections (7)(d) of new section 15A of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative
56.
Section 15A(7)(d) provides for the Secretary of State to make provision in
regulations as to when a statement under section 15A(1) is treated as having been
deposited with the commons registration authority. Since this is a matter of
technical detail, we think it is appropriate and proportionate for it to be prescribed
by regulations subject to the negative procedure.
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section 15B of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative
57.
Clause 13 also inserts a new section 15B in the 2006 Act, subsection (1) of
which requires each commons registration authority to keep a register containing
information about statements and maps deposited with that authority to be
prescribed by regulations subject to the negative resolution procedure.
58.
Subsection (3) of new section 15B provides that such prescribed information
may be included in a register maintained by the authority under section 31A of the
Highways Act 1980 and regulations under subsection (4)(a) may make provision
for the creation of a new part in such a register for that purpose.
59.
Subsection 4(b) of new section 15B allows the Secretary of State to specify in
regulations the circumstances in which an entry in the register relating to a
statement deposited under section 15A(1) or a map accompanying such a
statement, or anything relating to the entry, is to be removed from the register.
60.
As these are matters of administrative detail which may be subject to change,
the Department considers it appropriate and proportionate for these powers to be
exercisable by way of negative resolution procedure.
Clause 14 Restrictions on right to register land as town or village green
61.
Clause 14 inserts new section 15C and Schedule 1A into the 2006 Act. Section
15C(1) provides that the right under section 15(1) of the 2006 Act to apply to
register land as a town or village green ceases to apply (in relation to land in
England) if an event specified in the first column of the table set out in Schedule
1A to that Act (a ‘trigger event’) has occurred in relation to the land. Section
15C(2) provides that where the right under section 15(1) has ceased to apply
because of the occurrence of a trigger event it becomes exercisable again only if
an event specified in the corresponding entry of the table (a ‘terminating event’)
occurs in relation to the land.
Subsection (3) of new section 15C of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary procedure: Negative
62.
Section 15C(3) provides that the Secretary of State may by order make
provision as to when a trigger event or a terminating event is to be treated as
having occurred. This power is exercisable by way of negative resolution. This
is considered to be the appropriate amount of Parliamentary scrutiny for the
purposes of this clause. The regulation making power in section 15C(3) will
be used to deal with uncontroversial and technical matters. For example, when
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an application for planning permission under the Town and Country Planning
Act 1990 is withdrawn, which is a terminating event set out in the Table to
Schedule 1A.
Subsection (4) of new section 15C of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary procedure: Negative
63.
Section 15C(4) allows the Secretary of State to prescribe by order
circumstances in which the exclusion in section 15C(1) does not apply. It is
envisaged that this provision will be used in circumstances where it appears
such exclusion is being used by landowners purely to prevent applications for
town or village greens being made, rather than in cases where legitimate
development of the land is approved or proposed. It is considered appropriate
and proportionate for such matters to be prescribed in regulations subject to
negative resolution since it gives a limited power to the Secretary of State to
disapply only one subsection of one section of one Act of Parliament and, in
practice, it is likely that the circumstances prescribed will be uncontroversial.
Subsection (5) of new section 15C of the 2006 Act
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary procedure: Negative resolution
64.
Section 15C(5) provides power for the Secretary of State to specify
additional trigger or terminating events or to amend or omit any of the trigger
or terminating events for the time being specified. This power is exercisable
by way of negative resolution. This is considered to be the appropriate amount
of Parliamentary scrutiny for a number of reasons. Firstly, the power is limited
to amendments to the table setting out trigger and terminating events, it is not
open to the department to amend substantially the scope of primary legislation.
Secondly, it is considered that the addition, omission or amendment of trigger
events will, in practice, be uncontroversial. For example, it may be considered
that it would be appropriate for the land in relation to which permission for
development is granted by way of a Local Development Order. Such an
exercise of the power would be neither unusual nor unexpected. Finally, the
new section 15C (6) restricts the use of the power under section 15C (5) to
matters related to “development”. The department considers that this
restriction on the power will provide sufficient protection against the use of
this power for unexpected purposes.
65.
Clause 13(5A) ensures that an order made under clause 13(5)(a) to add
additional trigger or terminating events may make transitional provision
applying section 15C applies where such events have occurred before the
order is made or comes into force. The purpose of this subsection is to ensure,
if for example it is considered that an additional terminating event is required
in respect of an existing trigger event, that such an order may make provision
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for the exclusion of town and village greens to lift where no development is
proposed or planned in respect of an area of land. Our view is that this
clarificatory provision is necessary to ensure that the policy aims of provisions
related to town and village green applications can be achieved.
Clause 15: Applications to amend registers: modification of power to provide for fees
Power conferred on: Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution
66.
Clause 15 amends the fee making power in section 24(2)(d) of the 2006
Act (in relation to England) to allow the Secretary of State to make provision
in regulations as to fees payable in relation to an application to amend a
register of common land or town or village greens under Part 1 of that Act,
including provision for any fee payable to be determined by the person to
whom an application is made or (if different) by the person by whom an
application is determined. The purpose of this amendment is to allow greater
flexibility and targeting for charging, for example where applications made to
a commons registration authority are subsequently referred to the Planning
Inspectorate for determination. The power as it applies to Wales is restated but
is unchanged.
67.
The existing power in section 24(2)(d) is exercisable by regulations subject
to negative procedure and the Department does not consider it appropriate to
depart from this.
Other Infrastructure Provisions
Clause 17 Conditions of Licences under Gas Act 1986: payments to other licenceholders
Power conferred on: Gas and Electricity Markets Authority
Power exercised by: Licence document
Parliamentary scrutiny:
None
Purpose of the power
68.
Clause 17 amends section 7B(5)(b)(ii) of the Gas Act 1986, which relates to
the conditions which the Gas and Electricity Markets Authority (“the Authority”)
may include in a licence granted to a gas transporter under section 7 of the Gas
Act 1986. Section 7B (5)(b)(ii) of the Gas Act 1986 (prior to amendment)
provides that conditions included in a licence granted under section 7 may require
such a licensee to increase his charges for the conveyance of gas and to pay the
amounts so raised to holders of licences under section 7A of the Gas Act 1986
(i.e. gas shippers or suppliers). However, this is expressed to be without prejudice
to the Authority’s general power to include licence conditions under section 7B
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(4) of the Gas Act 1986. Our view is that a licence condition could require a
licensee under section 7 of the Gas Act 1986 to increase his charges for the
conveyance of gas and to pay the amounts so raised to holders of any licences
under the Act (i.e. including licensees other than gas shippers or suppliers), but the
law currently lacks transparency. The amendment in Clause 16 puts the issue
beyond doubt.
69.
As the provision does not change the substance of section 7B of the Gas Act
1986, but rather clarifies it, we consider that there is no change to the scope of
powers delegated to the Authority by section 7B of the Gas Act 1986.
Justification for the delegation of the power
70.
Section 7B of the Gas Act 1986 delegates to the Authority the power to
include certain conditions in licences granted to gas transporters, including at
section 7B(5)(b) any condition which requires a gas transporter to raise its charges
and pay such amounts to other licensees.
71.
Before issuing or modifying a licence under section 7 of the Gas Act 1986, the
Authority must give notice that it wishes to issue such licence and must consider
any representations received. The Authority must have regard to its duties
imposed by sections 4AA, 4AB and 4A of the Gas Act 1986 when imposing any
such licence conditions (s7B(4)).
72.
Section 23B of the Gas Act 1986 provides that licence conditions imposed by
the Authority are subject to appeal to the Competition Commission, and the
Authority is also subject to judicial review.
73.
Section 5A of the Utilities Act 2000 also imposes a duty on the Authority to
carry out an impact assessment, or to publish a statement setting out its reasons
why it is unnecessary for it to carry out an impact assessment, in any circumstance
where the Authority is proposing to do anything for the purposes of, or in
connection with, the carrying out of its functions under Part I of the Gas Act 1986
and it appears to the Authority that the proposal is “important” within the meaning
of section 5A of the Utilities Act 2000.
Parliamentary scrutiny
74.
Section 7B as currently drafted does not provide for Parliamentary scrutiny of
licence conditions set by the Authority; the proposed amendment in clause 16
does not amend this.
75.
Licence conditions tend to be technical and complex. Owing to the nature of
the documents they are amending they are not drafted in a way that makes it
appropriate to include them in a statutory instrument or for them to be scrutinised
by the Joint Committee on Statutory Instruments.
Clause 18 Variation of consents under Electricity Act 1989 and Clause 19 Consents
under Electricity Act 1989: deemed planning permission
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Power conferred on: Secretary of State, Scottish Ministers
Power exercised by: Regulations
Parliamentary scrutiny:
Negative
Purpose of the power
76.
Under section 36 of the Electricity Act 1989, the Secretary of State, Scottish
Ministers and the Marine Management Organisation may grant consent for the
construction, operation and extension of electricity generating stations of a certain
capacity. Which authority grants the consent depends on the location of the
generating station.
77.
It sometimes happens that for technological reasons, a developer’s plans for
proposed generating station works change in ways that are not compatible with the
terms of the relevant section 36 consent. The purpose of the clauses is to enable
section 36 consents to be varied in appropriate cases so as to enable such modified
plans to be carried out.
78.
Before a consent can be varied, an application will need to be made for
variation by or on behalf of the person with the benefit of the consent for the time
being. That application will need to be consulted on and considered by the
appropriate authority before a decision is made. Provision needs to be made in
respect of these processes.
79.
As in the case of applications for section 36 consent, ab initio, it is appropriate
for these procedural matters to be set out in Regulations – see for example the
Electricity (Applications for Consent) Regulations 1990 (SI 1990/455) and the
Electricity Works (Environmental Impact Assessment) (England and Wales)
Regulations 2000 (SI 2000/1927). Regulation making powers are therefore
conferred on the Secretary of State and Scottish Ministers to make the relevant
Regulations (see sub-sections (2), (3), (5) and (6) of new section 36C). It is likely
that the procedural rules for variations will largely consist of modified versions of
the secondary legislation relating to applications for section 36 consents: it would
not be appropriate to set out a series of modifications to secondary legislation in
primary legislation.
80.
The negative resolution procedure is proposed for making the Regulations.
The 1990 Regulations cited above are made without Parliamentary procedure;
however, the 2000 Regulations and the regulations implementing the Habitats
Directive (93/42/EEC), parts of which it is expected will be applied with
modifications, are made under the negative resolution procedure.
81.
Clause 19 amends s. 90 of the Town and Country Planning Act 1990 and s. 57
of the Town and Country Planning (Scotland) Act. Under these provisions, the
Secretary of State and Scottish Ministers are able to direct that planning
permission be deemed to be granted in respect of generating stations and overhead
electric lines consented under section 36 or section 37 of the Electricity Act 1989.
The amendments enable the Secretary of State and Scottish Ministers to vary or
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replace such deemed planning permissions when they vary a section 36 or section
37 consent, avoiding the need that would otherwise exist for the developer to
make a separate application to the relevant local planning authority in respect of
the planning permission.
Clause 24 Bringing business and commercial projects within Planning Act 2008
Regime
Power conferred on: Secretary of State
Power exercised by: Regulations
Procedure: Affirmative
Purpose of the power
82.
Clause 24 enables the Secretary of State to direct that certain development
proposals should be considered under the streamlined unified consent regime for
nationally significant infrastructure under the Planning Act 2008 rather than under
Town and Country Planning Act 1990 or other existing consent regimes. The
Secretary of State must conclude, before making a direction, that the project is of
national significance either by itself or when considered together with another
project.
83.
The development must be in England or adjacent waters (but only in Greater
London with the Mayor of London’s consent) and be, or form part of, a prescribed
type of project in the business or commercial field. Prescribed types of projects
will be set out in regulations made by the Secretary of State. The prescribed
categories provide certainty to developers, local authorities and others about the
types of projects that might be subject to a direction under the new power.
Justification for the delegation of the power
84.
The Secretary of State wishes to be able to amend the categories of prescribed
projects from time to time. It is not possible to always anticipate the types of
development which might come forward given the changing nature of technology,
the economic circumstances and Government’s policy priorities.
Parliamentary scrutiny
85.
The Parliamentary procedure selected for these powers is the affirmative
procedure. This will provide for the necessary Parliamentary scrutiny of the
categories of projects that can be subject of a direction under the new power.
Clause 26 Power to postpone compilation of Welsh rating lists
Power conferred on: Welsh Ministers
Power exercised by: Regulations
Procedure: Affirmative
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Purpose of the power
86.
Section 41 of the Local Government Finance Act 1988 (“the 1988 Act”)
requires the valuation officer for a billing authority to compile and maintain local
non-domestic rating lists, The local list contains details of every chargeable
property (“hereditament”) and the chargeable value of each property. The same
applies in relation to the “central list” of non-domestic property (section 52).
87.
To meet their duty to compile and maintain accurate local and central rating
lists, valuation officers must revalue all non-domestic property every 5 years.
Sections 41 and 52 provide that lists must be compiled on 1 April 1990 and on 1
April in every fifth year afterwards. The last revaluation took place on 1 April
2010. Clause 26 inserts new section 54A which enables the Welsh Ministers by
order to postpone the date on which new non-domestic rating lists in Wales should
be compiled from 1 April 2015 to 1 April in 2016, 2017, 2018, 2019 or 2020, and
ensures that new lists must then be compiled every five years thereafter.
Justification for the delegation of the power
88.
In relation to England, clause 25 amends makes provision on the face of the
Bill to postpone the date on which new non-domestic rating lists in England
should be compiled from 1 April 2015 to 1 April 2017. In relation to Wales, the
Welsh Ministers wish to take a power to postpone the date of the next revaluation
as this will allow them to consider all the relevant factors and the impact of any
postponement on businesses in Wales.
89.
The Assembly procedure selected for this order-power is the affirmative
procedure. This will provide for an appropriate level of Assembly scrutiny.
Clause 27 Employee owners
Section 205A(7) of the Employment Rights Act inserted by Clause 27(1)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: Affirmative resolution in each House of Parliament
Context and purpose
90.
An employee shareholder is an individual who does not have the employment
rights listed in the clause and who has in return received shares of a minimum
value of £2,000 in a the employer’s company (an amendment is being laid to
include shares in a parent company). The power will allow the Secretary of State
to increase that minimum value amount.
Justification
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91.
An individual can only take on the employee shareholder status if guaranteed a
minimum shareholding in return. This power will ensure that the value of the
shareholding can be increased according to changing economic circumstances or
after a review of the policy over time. This power is a form of protection for the
employee owner to ensure that he receives a certain level of consideration for not
having designated employment rights. The power is to increase, not to decrease,
the amount currently specified in the clause, thus ensuring that the employee
shareholder will always receive no less than £2,000 worth of shares.
Procedure justification and precedent
92.
As the employee shareholder status includes the opting out of certain
employment rights, it is considered that a high level of scrutiny in each House is
required in order to change the minimum share consideration for those rights. A
further reason is that this is a power to amend primary legislation. There is no
precedent for this power as the employee shareholder status is a new concept.
Section 205A(7A) of the Employment Rights Act inserted by Clause 27(1)
Power conferred on: Secretary of State
Power exercised by: Regulations
Procedure: Affirmative
Purpose of the power
93.
Clause 27 creates a new employment status of ‘employee shareholder’.
Employee shareholders will have reduced employment rights compared with
employees (but more employment rights than workers) and in return they will be
given shares in the employer’s company or parent company.
94.
For an individual to become an employee shareholder, the individual and the
employer must agree that the individual will become an employee shareholder and
the company must give the individual shares of a value of at least £2,000 in the
employer’s company or parent company. The agreement may, but need not,
include a requirement that the employer buys back the shares upon the individual
ceasing to be an employee shareholder.
95.
Subsection (1) of clause 27 introduces a power into the Employment Rights
Act 1996 allowing the Secretary of State to make regulations prescribing certain
requirements for any such buy back provisions contained within an employee
shareholder agreement. An example would be requiring a company to give the
employee shareholder a minimum amount of money for the shares on buyback.
96.
This is particularly important as this new status is available to both companies
who trade their shares on regulated markets and those who do not – predominantly
private companies. It is unlikely that there will be any market for shares in such
companies and therefore the contract between the two parties will need to contain
a requirement to buy back by the employer in order for these to have the necessary
value.
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Justification for the delegation of the power
97.
The Secretary of State wishes to be able to impose conditions on buy back of
shares under employee shareholder agreements if it appears that employers are
imposing unfair conditions in such agreements or otherwise abusing the new
status with regard to buying back the shares.
98.
It is not the Department’s intention that shares should be brought back at a
significantly reduced value by the employer, simply because there is no alternative
buyer. This is more likely to occur where employers are private companies and
there is no market for the shares. In these cases, the Department is concerned that
there is a risk that employers may not pay a fair value for the shares on buy back.
If this is the case, the reserve power will be used to set a minimum value for the
buy back in agreements.
99.
It is particularly important that the employee receives some value for shares on
buyback since the individual is accepting to work as an employee shareholder, a
status that receives fewer employment rights than an employee, in consideration
for the shares.
100. As the employee shareholder status is completely new and has therefore not
been used before, it is hard to predict at the present time if a problem will arise
with respect to arrangements and buy back conditions. The Department therefore
does not feel it is appropriate to legislate for buy back provisions on the face of
the bill.
101. If after the policy has been in operation it is found that there is a problem with
employee shareholder agreements and employee shareholders in the regards
outlined above, the Secretary of State may wish to set conditions on buy back
provisions in new employee shareholder agreements.
102. This reserve power for use if necessary is therefore considered by the
Department to be appropriate to safeguard individuals in respect of this new
status.
Parliamentary scrutiny
103. The Parliamentary procedure to be used for this power is the affirmative
procedure. This will provide for the necessary Parliamentary scrutiny of the
requirements that can be imposed on arrangements between employee
shareholders and employers to buy back shares. There is no precedent for this
power as the employee shareholder status is a new concept.
General Provisions
Clause 29 Consequential amendments
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Powers conferred on: Secretary of State
Powers exercised by: order
Procedure: negative / affirmative
104. This is a standard provision for consequential amendments. Where the power
is used to amend or repeal any provision of an Act of Parliament the affirmative
procedure is required, otherwise the negative procedure is required.
Clause 31 Commencement
Powers conferred on: Secretary of State
Powers exercised by: order
Procedure: none
105. Clause 31 of the Bill contains commencement provisions. As is usual for
powers of commencement, the exercise of these powers is not subject to any
Parliamentary procedure.
Department for Local Communities
17 December 2012
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