Commentary on Sections Other infrastructure provisions Section 22: Variation and replacement of pre-Planning Act 2008 consents
97.Section 22 inserts a new section, section 237A, into the Planning Act 2008 (“the 2008 Act”). Article 6 of the Planning Act 2008 (Commencement No 4 and Saving) Order 2010 (S.I. 2010/101) states: “[t]he provisions of the Act brought into force by this Order shall have no effect in relation to an application made before 1st March 2010 for any such consent or authorisation as is mentioned in section 33 of the Act.” The aim of this saving provision is to ensure that a number of projects which were the subject of applications under pre-2008 Act consent regimes could continue to be considered under the relevant pre-2008 Act legislation, and, if appropriate, granted consent under that legislation, without the need to go through a separate and additional process of applying for consent under the 2008 Act.
98.However, the way that it is expressed has been taken by some to mean that if a developer applied for a consent under pre-existing legislation prior to 1 March 2010, but the consent was subsequently varied, or replaced by a new consent, and the application that gave rise to that variation or replacement was made after 1 March 2010, the variation/replacement would fall outside the scope of the saving provision, meaning that the change to the project would require development consent under the 2008 Act. This would, amongst other things, be contrary to the intent of sections 20 and 21 above, and was not what was intended at the time. Section 22 aims to clarify the position as regards projects with pre-planning Act consent that have been varied or replaced.
99.Subsection (1) of section 22 inserts new section 237A into the 2008 Act. Subsections (1) and (5) of section 237A set out that section 237A applies in relation to consents of the various types listed in section 33 of the 2008 Act, which were originally applied for before 1 March 2010 (“section 33 consents”). Subsection (3) contains the main operative provision of new section 237A. The types of “replacement” consents that benefit from the transitional provision are defined in subsection (4).
100.Subsection (2) of section 22 provides that new section 237A has retrospective effect, in order to ensure that developments whose section 33 consents were varied or replaced between 1 March 2010 and the coming into force of new section 237A have the benefit of the new transitional provision.