UK: Planning Act 2008/Localism Act 2011 Summary At 3 February 2012

Today's entry is a summary of the regime for authorising major infrastructure projects introduced by the Planning Act 2008 and amended by the Localism Act 2011.

This is the tenth summary, which is updated and reissued every few months. For more detailed information, you can get hold of our free 16-page brochure on the Act - please contact Angus Walker to obtain one. For a complete picture of the new regime, Bircham Dyson Bell has written a book on it, published by Butterworths at the end of July 2009. Click this link for more details. A second edition is on the cards. For up-to-date links to all the relevant Planning Act documents, live applications etc. see this blog entry.

There are four abbreviations to get used to when talking about the regime, which neatly cover the four main new concepts it involves. The vast majority of the Act is geared towards speeding up the authorisation of major infrastructure, mainly in England, some types in Wales and one type in Scotland. The remainder of the Act tweaks the existing planning system and also introduces the Community Infrastructure Levy, more on which later. From April, the Localism Act will move decision-making to the government, and will make some other minor changes to the regime.

National Policy Statements

The first abbreviation is 'NPS' – National Policy Statement. There are going to be 10 or 11 of these: nine have been published at least in draft so far, and seven of these have been finalised ('designated'). The remaining one or two will be published over the next few months. These set out national policy on a particular area of national infrastructure in a single accessible document, state to a greater or lesser degree what infrastructure is needed over the next 15-20 years, and set out the impacts of the infrastructure that should be addressed by project promoters when making applications, and the Infrastructure Planning Commission when considering them.

The 10 or 11 NPSs proposed are to have the following titles (with links to the final or latest versions of the nine that have been published already and an expected date for the one that has not): Overarching energy (i.e. energy of all types, to sit above the other energy NPSs); Nuclear Power volume I volume II; Fossil Fuels; Renewable Energy; Electricity Networks; Gas and Oil Infrastructure; Ports; Waste Water; Hazardous Waste; National Networks (in February 2012) (i.e. railways, motorways, trunk roads and rail freight interchanges) and Water Supply (the one that may or may not be published).

The six energy NPSs were approved by Parliament and designated in July 2011 and the Ports NPS was designated in January 2012. Consultation on and Parliamentary scrutiny of the Waste Water and Hazardous Waste NPSs has finished and the government's reaction is awaited. Parliamentary approval is another innovation of the coalition government, to become a requirement (actually just the potential for Commons disapproval) via the Localism Act.

The point of NPSs is to avoid debates about policy when applications are under consideration – nearly a quarter of the Heathrow Terminal 5 inquiry was taken up with debating whether it was needed, for example. Now, the commissioner will just be able to say 'It says it is needed in the Airports NPS – when that came out in draft, that was your chance to debate that issue. Next, please!'

Nationally significant infrastructure projects

The second abbreviation is 'NSIP' – Nationally Significant Infrastructure Project. This should not be confused with NPS, and is being pronounced 'ensip', which helps to distinguish it. The regime only applies to NSIPs, and the Act sets out, for each type of project, how big it needs to be for it to become an NSIP.

The 16 NSIPs are: electricity generating projects of all types; overhead electric lines; underground gas storage; LNG facilities; gas reception facilities; gas pipelines; other pipelines; highways; airports; harbours; railways; rail freight interchanges; dams/reservoirs; water transfer facilities; waste water treatment plants and hazardous waste facilities. The government has consulted on extending the waste water treatment plant category to include the transfer or storage of waste water as well and a decision is expected shortly.

For each type of project, the Act sets out a threshold above which it becomes an NSIP. For example, a new airport would be an NSIP if it is expected to be able to handle at least 10 million passengers per year, or 10,000 air cargo movements per year. Expansions of existing facilities can also be NSIPs - if an airport is to expand by those same amounts, it would be an NSIP. The brochure I mentioned gives the threshold for all the 16 types, and whether they must be in England, Wales or Scotland.

Since 1 March 2010, it has been compulsory for applications for the first 12 of the 16 types of NSIP listed above to use the new regime – indeed illegal to build an NSIP without having used it (although a project authorised by an Act of Parliament could override this). The new regime became compulsory for waste water NSIPs on 6 April 2011 and hazardous waste NSIPs on 1 October 2011, and the last few (water-related NSIPs) are expected to 'go live' in 2012.

It is generally forbidden for a project below the threshold to use the regime, although the government can decide that a below-threshold project, a project outside the descriptions in the Act (as long as it is an energy, transport, water, waste water or waste project) or a cluster of projects should be considered an NSIP. The coalition government originally said it would do this in one case: the Thames Tunnel sewage project, but it has decided to extend the NSIP definition instead.

The Localism Act will make this easier - it will allow requests to be made to 'upgrade' projects in this way, before an application is made. On the other hand, the government has said that High Speed 2 will be authorised by a Bill in Parliament and will not use the Planning Act regime. It is not otherwise possible to 'downgrade' a project to fall outside the regime.

Infrastructure Planning Commission

The third abbreviation is 'IPC' – Infrastructure Planning Commission. This is the new but short-lived body that considers applications for NSIPs. The coalition government intends to replace it with a 'National Infrastructure Directorate' of the Planning Inspectorate in April 2012, but until then it is operating as intended. The full complement of 39 Commissioners has been appointed (although this now stands at 36).

One commissioner, or a panel of three or more, will consider the evidence on an application (depending on its complexity - of five applications to have had commissioners appointed, two had a panel of three and three have a single commissioner). If no NPS is in place, while the IPC is in existence, it will refer its recommendation to the Secretary of State for decision, which will take up to three more months.

The measures to replace the IPC and make other changes to the regime are contained in the Localism Act, enacted in November 2011. The relevant parts are expected to come into force on 1 April 2012.

The authorisation regime remains unscathed, but the consideration of applications will transfer to the National Infrastructure Directorate mentioned above. Commissioners will become 'examiners'. In the meantime, and for the next two months, the IPC will continue to examine applications and make recommendations on them. The designation of the energy NPSs meant that it decided one of the applications before it, but the timing of the others means that it will not decide any more.

The IPC maintains a log of advice it gives and projects it is expecting on its website. To date, it has received 13 applications since they had to be made to it on 1 March 2010: it declined to consider the first, but accepted the next 12 for examination - proposed energy from waste projects in Bedfordshire and Merthyr Tydfil. railway chords near Doncaster and Ipswich, windfarms at Kentish Flats, Galloper, Brechfa Forest and Triton Knoll, a proposed nuclear power station at Hinkley Point, a gas storage project and a highway in Lancashire and a harbour on Humberside. Nine other projects have started their formal pre-application consultation, and a further 41 projects are expected.

Everything about the IPC is geared to speeding up the process. The IPC has (fairly) fixed timescales to work to – around three months from the application being made to sort itself out procedurally, six months to consider evidence and three more months to make a decision or a recommendation. These can be extended, however, and the IPC has decided to extend the examination period by two months in one case already (although that application was subsequently withdrawn). Oral examination is discouraged (although will probably still happen to some extent on each application). Applicants will have to do a great deal of consultation before they even apply to the IPC, in an attempt to front-load the process and identify areas that could be changed before things get too entrenched and expensive.

When the IPC is replaced, the government intends to give itself a deadline to make decisions since this is often a cause of considerable delay - and the Localism Act has set this as three months, as for the existing regime when no NPS is in place.

Community Infrastructure Levy

The final abbreviation is 'CIL' or Community Infrastructure Levy. This is a separate innovation to the new regime for authorising NSIPs outlined above. It is designed to formalise a tariff system for developments (consisting of buildings) getting planning permission to contribute to the infrastructure burden that they will create. It is up to each local authority to decide whether to introduce it. The authority must have completed the first iteration of its local development framework, must then publish a 'charging schedule' for its CIL and hold an examination into it if there are any objections. Only then can it start to charge CIL. At least 21 local authorities have at least published a draft charging schedule - details can be found on the 'links' blog page mentioned above. CIL has come into force in three council areas: Newark & Sherwood, Shropshire and the London Borough of Redbridge.

Income from CIL is ring-fenced and must be spent on 'infrastructure' - which for this purpose has a wider meaning than in the rest of the Act, and may be widened further. The regulations introducing CIL are in force; the coalition government has decided to retain CIL and has published further regulations making minor amendments to the regime, plus a couple more in the Localism Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.