Commentary on Sections Other infrastructure provisions Section 26: Bringing business and commercial projects within Planning Act 2008 regime
121.Section 26 replaces section 35 of the Planning Act 2008 (“the 2008 Act”) and inserts new section 35ZA.
122.The substituted section 35 enables the Secretary of State to direct that certain commercial and business development requires consent under the nationally significant infrastructure regime contained in the 2008 Act, as well as retaining the existing power of the Secretary of State to direct that development in the fields of energy, transport, water, waste water or waste requires consent under the 2008 Act.
123.In relation to commercial and business development, 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 business or commercial project. Prescribed projects will be set out in regulations made by the Secretary of State but those regulations may not contain projects that consist of dwellings. Following receipt of a written request for a direction under section 35(1) 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 prescribed business or commercial project or proposed project.
124.Section 35ZA contains procedures relating to directions under section 35. The procedures relating to section 35 directions were previously contained in subsections (4A) to (10) of section 35. Section 35ZA(2) provides that a direction relating to business or commercial development can only be made if a qualifying request is made by a person who proposes to carry out the development, or a person who has applied or proposes to apply for a consent mentioned in section 33(1) or (2) of the 2008 Act, or a person who proposes to apply for a development consent order.
125.If the Secretary of State issues a direction under section 35(1) he must give reasons for the decision.
126.Section 26 also amends section 232 of the 2008 Act so regulations made under section 35(2)(a)(ii) will be subject to the affirmative procedure. It also amends references in section 35A to reflect the insertion of new section 35ZA.