UK: Planning Act Bog: 171: IPC Reaches Memorandum of Understanding with WAG

Last Updated: 5 October 2010
Article by Angus Walker

This is entry number 171, first published on 4 October 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on Friday's concordat between the Infrastructure Planning Commission and the Welsh Assembly Government.

Infrastructure Planning in Wales

The Planning Act applies to Wales, but in a cut-down version where an application to the Infrastructure Planning Commission (IPC) is restricted in several ways:

  • it can only be made for five of the 16 types of project in the Act
  • it cannot include 'associated development' other than in one very limited case
  • it does not dispense with the need to apply for 'heritage' consents, and
  • it cannot deem a FEPA licence, or its replacement a marine licence.

The five types of nationally significant infrastructure project (NSIP) are generating stations (a wide type, ranging from nuclear power stations to windfarms), overhead electric lines, one type of gas storage, pipelines and harbour facilities.

'Associated development' consists of items other than the main NSIP that would need planning permission but you can include them in an application in England. In Wales, however, planning permission for everything that isn't the main project is still needed from the local council, except for some devlopment relating to a gas storage project.

The heritage consents are ancient monument consent, conservation area consent and listed building consent.  They must also be applied for separately if needed, unlike in England, where they are not needed.

A Food and Environment Protection Act licence is usually required if the project includes offshore works.  In Wales, this must still be a separate application, to the Welsh Assembly Government (WAG).  When the relevant provisions of the Marine and Coastal Access Act 2009 come into force, this consent will be replaced by a 'marine licence', but it will still have to be applied for separately.
Additionally, for Welsh applications being decided by more than one commissioner, if possible at least one of the commissioners should be nominated by WAG.  It is not clear if any commissioners were nominated by WAG when first appointed, indeed it looks as though none was, but they can be nominated later.

These restrictions do not seem to have dissuaded potential applicants. Wales has more prospective projects on the IPC's books than any other region - 13, or more than a quarter of the total.

On the other hand, special care is needed in preparing an application in Wales given the above restrictions.  The IPC declined to consider the only application for a Welsh project so far submitted to it.

The Memorandum of Understanding

WAG is the Welsh Assembly Government rather than a footballer's consort, although it has recently got into bed with the IPC to create a 'Memorandum of Understanding' (MoU), which can be found here. There is also a Welsh version, in keeping with its aspirations to treat English and Welsh equally as far as possible (although the application form for an NSIP is currently English-only).

The main gist of the MoU is to create established lines of communication between the two bodies so that responses are timely and nothing gets lost, and regular non-project specific meetings will be held every six months.  There are one or two other nuggets, though.

One is that WAG will seek to agree with an applicant if it wants a longer consultation period than the applicant is offering during either the pre-application consultation or once an application has been accepted (i.e the objection period).  Applicants may therefore have to expect some give and take over their consultation periods.

Another is that the IPC will consult the Welsh Language Board and the four Joint Transport Authorities in Wales when it is asked for a scoping opinion, even though these are not in its list of statutory consultees.  WAG will also be consulted on nuclear power station applications in England as well as Wales.

Finally, the document advises that applicants will be expected to have obtained, or be very likely to obtain, all the additional consents that will be necessary, before the end of the IPC application examination period - clearly another point for potential applicants to note.

The Future

It may have concluded this MoU with the IPC, but WAG has an eye on the future.  Earlier this summer environment minister Jane Davidson AM called for a meeting with the decentralisation minister in Westminster, Greg Clark MP, to seek a transfer of powers for infrastructure planning to it upon the abolition of the IPC in April 2012.  See this press release.  Next month's Localism Bill would be the most likely place for any such decentralisation to take place, if the pleas are heeded.

Previous entry 170: Planning Act 2008 chronology - past and future

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.

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Angus Walker
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