770: Is section 53 dead?

Today’s entry reports on a potential change to land access for nationally significant infrastructure projects.

Today, section 26(8)(b) of the Neighbourhood Planning Act 2017 comes into force. Spectacular news, don’t you think? You don’t know what I’m talking about? Let me explain.

Background

The Planning Act 2008 contains a power to force access onto land for surveying purposes, contained in section 53, which has been used successfully a few times. This is, however, a laborious process of demonstrating that you have exhausted reasonable negotiations with the landowner and submitting a detailed application to the Planning Inspectorate (and paying £1500 to boot). Having been through it recently I wouldn’t wish it on (almost) anyone.

Last year, the Housing and Planning Act 2016 was enacted, and section 172 of that Act introduced a new surveying power that hardly requires anything. One simply gives 14 days’ notice to the relevant landowner(s) and on you go (with the proviso that force cannot be used unless a magistrate agrees). Bish bosh.

When that provision came in, however, in our view it only applied to ‘vanilla’ compulsory purchase orders and so did not apply to compulsory acquisition under the Planning Act 2008 (although it is quite tortuous to follow the logic of that through various acts).

Latest change

This year, the Neighbourhood Planning Act 2017 was enacted, and during its passage through Parliament we lobbied for it to include a change to the Housing and Planning Act so that section 53 did not have to be used to obtain surveying powers for development consent orders (DCOs).

Section 26(8)(b) was added to the bill to change the application of section 172 from just compulsory purchase orders to any form of compulsory acquisition, thereby applying it to the Planning Act 2008. Today that section comes into force via this commencement order.

Analysis

I think the easier section 172 power can now be used by promoters of nationally significant infrastructure projects, although the Planning Inspectorate doesn’t agree with me and I am not giving you, dear reader, legal advice – you’ll have to pay me for that.

In July, PINS issued an ‘FAQ’ on section 53, which says at paragraph 6.1 that ‘the policy intention is that the more specific power in section 53 of the Planning Act 2008 should remain in use’.

OK, let it remain, but in my view since I believe that the bill was amended specifically to extend the scope of section 172 to development consent orders, that should be sufficient for it to be able to be used for them.

Let’s see if anyone tests the water so we can all know whether or not this power can be used…