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38.—(1) Where the relevant planning authority–
(a)refuses an application for any consent, agreement or approval of that authority required by a requirement listed in Schedule 2 (requirements) to this Order or grants that consent, agreement or approval subject to conditions; or
(b)does not give notice to the undertaker of its decision on an application for any consent, agreement or approval of that authority required by a requirement listed in Schedule 2 (requirements) of this Order within 16 weeks beginning with the day immediately following that on which the application is received by that authority or within such shortened or extended period as may at any time be agreed upon in writing between the undertaker and that authority,
Article 40 (arbitration) does not apply but the undertaker may by notice appeal to the Secretary of State.
(2) Any appeal to the Secretary of State under paragraph (1) must be made under Part III (control over development) of the 1990 Act as if the requirement in Schedule 2 (requirements) of this Order which is the subject of the appeal were a condition under subsection 78(1)(b) of the 1990 Act.
(3) For the purposes of the application of section 262 of the 1990 Act (meaning of “statutory undertaker”) to appeals pursuant to this article, the undertaker is deemed to be a holder of a licence under section 7 of the Gas Act 1986(1).
1986 c. 44; section 7 is amended by section 5 of the Gas Act 1995 (c. 45), and sections 76 and 108 of the Utilities Act 2000 (c. 27).
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