The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 (the Planning Act).

This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning system and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.

Why does the applicant need to enter land?

Information about the NSIP process, the people and organisations involved in the process and the stages of the process can be found in The Planning Inspectorate’s Advice for members of the public.

The applicant is the developer that wants to build a NSIP and so will need to submit an application for a DCO to the Planning Inspectorate.

The applicant may need to enter land during the pre-application stage, after the application has been accepted for examination and, if consent is granted, before or during the construction of the project to:

• carry out surveys to understand the natural habitat and to identify any protected species
• take measurements and levels
• drill bore holes and take samples to understand the nature of the subsoil and check for minerals or other matter

They may need to do this before the application is submitted to the Planning Inspectorate so that they can comply with the statutory procedures set out in:

• The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations 2017)
• The Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations)

The applicant is likely to require entry to land during the pre-application stage to:

• carry out an assessment of the likely significant effects of the project on the environment and to produce, where necessary, an Environmental Statement
• to record the status of the natural habitat and assess whether the project may have adverse effects on any protected European sites

For further information see the Planning Inspectorate’s advice on the Environmental Impact Assessment process, advice on the Environmental Statement, and advice about the Habitats Regulations.

Where the applicant seeks to obtain rights of entry to land through section 53 of the Planning Act during the pre-application stage, their programme document should be updated accordingly. See the Planning Inspectorate’s Pre-application prospectus for more information about the applicant’s programme document.

What is a right to enter land authorisation?

The applicant must act reasonably when trying to obtain permission to access the land and have a genuine need to enter the land. If they consider they have been refused access unreasonably they can make a request to the Planning Inspectorate for authorisation of a ‘right to enter land’. The applicant must pay a separate fee for making a request for authorisation under section 53.

Further information about fees can be found in the government’s Planning Act 2008: Infrastructure Planning (Fees) Regulations 2010 guidance.

A ‘right to enter land’ authorisation is a written document which confirms that the applicant can, at any reasonable time, enter the specified land for the reasons given in the authorisation. A person commits an offence if they wilfully obstruct a person with the authority to enter the relevant land.

The persons or organisations with an interest in the land which the applicant wants to access include:

• an occupier of the land
• a person who has an interest in the land as a freeholder, mortgagee or lessee
• a person who directly or indirectly receives rent for the land
• a person who is authorised to manage the land or to arrange the letting of it

The Planning Inspectorate’s role is to administer the process set out in section 53 of the Planning Act, and make a decision on behalf of the Secretary of State about whether to provide the applicant with the authority to enter the relevant land. A decision is usually made within 3 months of receipt of the request for authorisation but can take longer. The applicant should take this into account when preparing their pre-application programme document and considering the timeframe for the submission of their application.

Anyone who has an interest in land which the applicant wants to access may wish to consider employing an agent to act on their behalf, or have another person represent them. Where an agent is employed, or another person is representing someone, they should provide the applicant and the Planning Inspectorate with written evidence from the person or organisation with an interest in the land which confirms that they are authorised to act on behalf of them.

The process

Step 1

The applicant seeks to obtain permission to access the land from the person or organisation with an interest in the land in a reasonable manner.

Step 2

Where the person or organisation with an interest in the land refuses to allow access, and the applicant considers the refusal unreasonable, the applicant notifies them that they intend to request authorisation from the Planning Inspectorate for a right to enter the land. The applicant should tell the recipient of the notification about any conditions they may ask to be included with an authorisation request. Where possible the applicant should seek agreement with the person or organisation with an interest in the land about the proposed conditions. The applicant should make the recipient aware of this advice page and notify the Planning Inspectorate that they intend to seek authorisation.

Step 3

At least 4 weeks before submitting a request for authorisation the applicant should contact the Planning Inspectorate for advice on:

• The likely number of requests – usually the Planning Inspectorate will treat each land parcel representing a registered title, or each area of unregistered land, as one authorisation request. If the applicant considers that, for example, multiple parcels of land which neighbour each other and are held by the same landowner should be treated as one request then they will need to provide justification for this approach.
• Details of the fee payable and payment methods – the request will not be considered until the fee has been paid
• The information that needs to be provided with the request for authorisation
• The type of evidence required to show that the applicant has made reasonable attempts to obtain permission to access the land
• How this might impact the applicant’s pre-application programme document, including how this should be updated to reflect the request for authorisation

The Planning Inspectorate is not able to provide authorisation to enter land for any activity that may lead to an offence being committed under:

• the Habitats Regulations
• the Wildlife and Countryside Act 1981 (as amended)
• legislation for the protection of specific species, for example, the Protection of Badgers Act 1992

In such circumstances the applicant should consider if it needs to obtain a licence from the relevant nature conservation body, for example Natural England or Natural Resources Wales.

For each authorisation request the applicant should complete the checklist and land interests table provided at annexes A and B (MS Word Document, 112 KB) to this advice. This will ensure all the required information is provided and avoid delays in issuing a decision on the requests.

Step 4

The applicant considers the advice from the Planning Inspectorate and submits the authorisation request. The applicant pays the fee. The fee will not be refunded if the authorisation request is withdrawn. The documents submitted with the request for authorisation will not be published on the Find a National Infrastructure Project website.

How to submit a request for authorisation of a right to enter land

There is no standard form for the applicant to complete to make a request under section 53 of the Planning Act for authorisation of a right to enter land. However, the Planning Inspectorate expects the applicant to fully complete the checklist and land interests table at annexes A and B (MS Word Document, 112 KB) for each authorisation request it submits.

Annexes A and B should be supported by evidence. This may include:

• copies of letters or emails sent
• logs of meetings held or telephone calls made
• copies or details of any responses received

Step 5

The applicant notifies the person or organisation with an interest in the land that they have submitted a request for authorisation to enter the land to the Planning Inspectorate. The notification must:

• be sent to each person or organisation with an interest in the relevant land even if two or more are registered at the same address
• include an exact copy of the authorisation request sent to the Planning Inspectorate
• advise the person or organisation with an interest in the relevant land that they can send the Planning Inspectorate comments on the applicant’s request for authorisation, and the deadline for this. The deadline must be a minimum of 14 days from the date the notification was received.

The Planning Inspectorate may request proof that the notifications were delivered to, and received by, the persons or organisations with an interest in the land.

Step 6

The Planning Inspectorate will also notify each person or organisation with an interest in the relevant land that it has received a request for authorisation and confirm the deadline for comments to be sent to it.

Step 7

The person or organisation with an interest in the relevant land sends any comments to the Planning Inspectorate about the applicant’s authorisation request. The comments will not be published on the Find a National Infrastructure Project website. The comments should include:

• confirmation that the information provided in the applicant’s authorisation request is accurate.

The recipient should confirm if:

a. the schedule of correspondence includes all the relevant correspondence

b. all the relevant correspondence was received

c. the notes of any meetings or telephone conversations are accurate and appropriately reflect what was discussed. The proposed recipient can send copies of any correspondence it has exchanged with the applicant, including a log of any meetings or telephone calls, that are not included with the schedule of correspondence.

• the reasons for refusing permission for the applicant to enter the land
• any comments on the applicant’s proposed duration of the authorisation. In most cases any authorisation of a right to enter land that is granted will expire on:
  • For requests made during the pre-application stage – 12 months after the date of the authorisation, or the date the NSIP application is submitted to the Planning Inspectorate if this is earlier than 12 months after the date of the authorisation
  • For requests made during the pre-examination stage - 12 months after the date of the authorisation
• comments on any draft conditions proposed by the applicant
• any suggested conditions the recipient may wish to be imposed, taking into account the current use of the land

If the proposed recipient considers that a different authorisation period should apply they should provide details of an alternative period. They should include a clear explanation of why this should be considered by the Planning Inspectorate.
If the Planning Inspectorate does not receive any comments by the deadline it will assume that the person or organisation with an interest in the relevant land does not have any comments to make.

Step 8

The Planning Inspectorate may request further information from the applicant or the person or organisation with an interest in the relevant land. A deadline for a response will be given.

Step 9

The Planning Inspectorate considers the information provided by the applicant and the person or organisation with an interest in the relevant land and decides whether to provide the applicant with the authority to enter the relevant land. If authorisation is provided the Planning Inspectorate will also decide if any conditions should be attached to it.

Step 10

The Planning Inspectorate sends its decision to the applicant and the person or organisation with an interest in the relevant land and publishes it on Find a National Infrastructure Project website.

Step 11

If authorisation is granted the applicant can, at any reasonable time, enter the specified land for the reasons given in the authorisation. The applicant:

• must, if so required, produce evidence of their authority to enter the land
• before entering, state the purpose for entry
• must provide 14 days’ notice of the intended entry to any occupier of the land
• must comply with any other conditions given in the authorisation

If any damage is caused to the land or chattels (personal belongings) when the applicant is exercising their right to enter the relevant land in accordance with the authorisation, then the person or organisation with an interest in the relevant land can claim compensation. Claims for compensation are not dealt with by the Planning Inspectorate. If there is a dispute about compensation this will be dealt with by the Upper Tribunal Lands Chamber.