The Planning Act 2008 (Act) introduced a radical new regime for authorising nationally significant infrastructure projects (NSIPs).
FURTHER CHANGES IN GROWTH AND INFRASTRUCTURE BILL
In October 2012, the Government introduced a Growth and Infrastructure Bill that will make further changes to the process introduced by the Planning Act 2008. The four key elements of the new regime, and the changes proposed, are set out below:
The Act provides for the designation of national policy statements (NPSs) in respect of specified descriptions of development. NPSs sit within a system of national planning guidance. These require the approval of Parliament before being designated by the Secretary of State (SoS).
Nationally significant infrastructure projects (NSIPs) are specifically identified in the Act. The Localism Act did not amend the list of (or thresholds for) such projects, although waste water transfer projects have been added by separate means.
The Infrastructure Planning Commission (IPC) which used to be the decision-making body in respect of NSIPs has been abolished, and its functions transferred to a national infrastructure directorate (NID) within the Planning Inspectorate.
The Act creates a completely new form of authorisation – the development consent order (DCO), which authorises the construction and operation of NSIPs, and largely replaces the myriad of consents previously required for major infrastructure projects. These procedures are operated by the NID and the final decision on a DCO will be taken by the SoS.
DESIGNATION OF NPSS
The Coalition Government has designated eight NPSs – six on energy, one on ports and one on waste water – and a ninth awaits designation – hazardous waste.
Designation of the NPSs completes the missing element of the new regime in respect of energy, ports and waste water NSIPs namely, the establishment of the necessary policy against which such projects will be examined and determined. The NPS for roads and railways, the so-called National Networks NPS, has been long awaited but has been held up by a series of delays and is not now expected until 2013.
An NPS for airports will now have to await the outcome of the Davies review into capacity in the south east of England.
NSIPS – SLOW BUT SURE
The lower than expected number of applications since the inception of the regime in March 2010 – only 21 in total to date – reflects the difficulties with getting to grips with the new regime, and the abolition of the IPC may also have dissuaded promoters from making applications around that time.
In what follows, the Planning Act regime is set out in more detail.
REGULATIONS AND GUIDANCE
Regulations are in force dealing with the detailed operation of the new system. These cover: application procedures (including prescribed forms for making DCO applications); the need for appropriate assessment and environmental impact assessment; procedures for the examination of applications; prescribed matters to which regard must be had when taking decisions; compulsory purchase; and fees.
The SoS has published guidance notes on preapplication consultation; application forms; associated development; the examination process; compulsory purchase procedures; fees; and specific guidance for local authorities. This guidance is currently in the process of being revised in the light of experience of the regime – in particular the pre-application and local authority guidance notes are to be merged. The IPC had published guidance on preapplication stages and on the preparation of application documents but these have since been withdrawn; although their suite of advice notes has been carried forwards by the Planning Inspectorate. These cover a range of topics such as local impact reports, scoping opinions, habitats assessments and transboundary effects.
'SWITCH-ON'
The previous Government indicated that it intended to 'switch on' the new system (ie require applicants to make applications for DCOs) on a phased basis, sector by sector, and the energy and transport sectors were duly the first to be switched on (1 March 2010), followed by the waste water (April 2011) and hazardous waste sectors (October 2011). The water supply sector was not switched on in April 2012 as originally planned and a switch on is not currently timetabled. PINS must receive applications from these dates irrespective of whether the relevant NPS has been designated.
An energy, transport, waste water or hazardous waste project constituting an NSIP can now only be authorised by way of a DCO, although an application for consent or permission for a project submitted under procedures in existence before the relevant switch-on date, can continue under those procedures.
NATIONAL POLICY STATEMENTS
The Act introduces a new concept – the NPS. An NPS is a statement by the SoS setting out Government policy in relation to one or more specified descriptions of development in the fields of energy, transport, water, waste water and waste for England, (in some cases) Wales and in one instance in Scotland.
An NPS may specify the amount, type or size of development which is appropriate nationally or for a specified area; the criteria to be applied in deciding whether a location is suitable; the relative weight to be given to such criteria; the identification of one or more locations as suitable (or unsuitable) for specified development; the identification of one or more statutory undertakers as appropriate persons to carry out such development; and the circumstances in which it is appropriate to mitigate the impact of specified development.
The previous Government indicated its intention to produce 12 NPSs across a range of industry sectors.
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