UK: The New Planning Process for National Infrastructure Projects

Last Updated: 9 November 2010

NEW GOVERNMENT – NEW CHANGES

Article by Robbie Owen

The Coalition Government has announced changes to the operation of the system for authorising nationally significant infrastructure projects (NSIPs), introduced by the Planning Act 2008 (Act). While some of the changes appear dramatic, the reality is that the new unified consenting regime established by the Act remains intact. 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 are to be retained, but sit within a new system of national planning guidance. These will now 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. There are no proposals for amending the list of (or thresholds for) such projects.
  • The Infrastructure Planning Commission (IPC) which will normally be the decision-making body in respect of NSIPs is to be abolished, and its functions transferred to a major infrastructure planning unit (MIPU) within the Planning Inspectorate.
  • The Act creates a completely new form of authorisation – the development consent order (DCO), which will authorise the construction, and operation of NSIPs, and largely replace the current myriad of consents required for major infrastructure projects. There are no proposals to disturb or amend the DCO or the processes and procedures for its submission and examination but, in future, these procedures will be operated by the MIPU and, the final decision on a DCO will be taken by the SoS.

Localism Bill

The Coalition Government will introduce a Localism Bill into Parliament to implement these changes. This will include provisions to ensure that NPSs are voted on in Parliament before being designated by the SoS. In addition, the Bill will provide for the abolition of the IPC and the transfer of its functions to the MIPU. It is possible that the Bill may also make further, as yet unspecified, refinements to the existing regime eg by making adjustments to some of the thresholds for NSIPs. The Bill is expected to be published in November 2010 and receive the Royal Assent in the summer/autumn of 2011. The abolition of the IPC, and the transfer of its functions to the MIPU, is expected to take effect on 1 April 2012.

Designation of Energy NPSs

The former Government ran out of time and was unable to designate the earlier draft energy and ports NPSs before the election. The Coalition Government has published six revised draft energy NPSs. The period for consultation on these ends on 24 January 2011. This will be followed by consideration by the Select Committee for Energy and Climate Change and separate consideration by the House of Lords. Thereafter, there will be a debate in Parliament (although at the moment there is no legal requirement for this). Under the Coalition Agreement a Liberal Democrat spokesperson will be able to speak against the nuclear NPS but Liberal Democrat MPs are required to abstain on a vote. Following Parliamentary approval the SoS can be expected to formally designate these NPSs. Designation of an NPS prior to the enactment of the Localism Bill will have the effect of transferring the decision making power to the IPC. As a consequence it is likely that designation of the energy NPSs will be accompanied by a direction from the SoS to the IPC to recover jurisdiction in respect of the those energy projects which the IPC are handling.

Subject to there being no court challenges (or any challenges made are defeated) then designation of the energy NPSs will complete the missing element of the new regime in respect of energy NSIPs namely, the establishment of the necessary policy against which such projects will be examined and determined.

IPC – Business as Usual

For the IPC it is likely to be business as usual for at least a further year. This is because the IPC is, for some projects, eg certain energy and transport NSIPs, the only consenting option available to a promoter (other options having been withdrawn). Steps to promote a project through the IPC during the next year should not represent wasted time or cost. This is because the new Government's Coalition Agreement indicates that transitional provisions will be included in the necessary legislation to protect and preserve steps already taken, and ensure that these are 'grandfathered' into the new system.

The Existing Regime

The remaining sections of this Newsletter summarise the system for approving NSIPs in England and Wales as it now operates and will continue to operate, until the Localism Bill receives the Royal Assent, and makes the changes referred to above.

Regulations and Guidance

Regulations are now in force dealing with the detailed operation of the new system. These cover: application procedures (including prescribed forms and model provisions for inclusion in DCOs); 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 pre-application consultation; application forms; associated development; the examination process; compulsory purchase procedures; fees; and specific guidance for local authorities. In addition, the IPC has published guidance on pre-application stages and on the preparation of application documents; as well as advice notes on local impact reports (Local Impact Reports), and scoping opinions.

'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, with the energy and transport sectors being the first to be switched on (1 March 2010), followed by the waste water and hazardous waste sectors (April 2011) and the water supply sector (April 2012). The IPC will be able to receive applications on these dates irrespective of whether the relevant NPS has been designated. It remains to be seen whether the new Coalition Government will stand by the previously stated 'switch-on' dates in respect of the remaining waste water, hazardous waste and water supply sectors.

An energy or transport project promoted after 1 March 2010, and constituting an NSIP can only be authorised by way of a DCO. An application for consent or permission for an energy or transport project submitted under procedures in existence before 1 March 2010, will be allowed to continue after 1 March 2010 under those procedures, and will remain unaffected by the commencement of the new regime.

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. Details of these, including those NPSs published in draft and those awaited, together with the anticipated dates for designation, are set out in Table 1 below.

NPS Consultation and Parliamentary Scrutiny

The SoS must carry out public consultation in relation to each NPS with a wide range of public bodies, arranging as appropriate for publicity to be given, and must have regard to responses to such consultation. In addition, the functions of the SoS must be exercised with the objective of contributing to the achievement of sustainable development. In particular, the SoS must have regard to the desirability of mitigating, and adapting to climate change, and to achieving good design. Draft NPSs will be subject to formal sustainability appraisals and, although not specified in the Act, strategic environmental assessment, if appropriate.

NPSs are also subject to a form of parliamentary scrutiny. The SoS is obliged to lay a draft NPS before Parliament. In the House of Commons either an ad hoc Committee or the relevant Select Committee (to date it has been the latter) will call for evidence, scrutinise the draft NPS and publish a report on it. In the House of Lords the NPSs are debated in a Grand Committee and also on the floor of the House if called for.

The Government must consider representations made during the consultation, any committee recommendations and any resolutions of either House of Parliament. It must then lay before Parliament a statement setting out the Government's response to the resolution/recommendations before amending the NPS as appropriate, and designating the same.

Review and Suspension of NPSs

The SoS is under a duty to review each NPS whenever the SoS thinks it appropriate to do so. In addition, where there is a significant change of circumstances since an NPS was issued (or last reviewed); such a change was not anticipated at that time; and, if it had been anticipated, the policy would have been materially different; then the SoS may suspend operation of all or part of the NPS until a review of the NPS has been completed.

Challenging an NPS

An NPS can be challenged in the courts. The Act creates a new form of challenge which comprises a hybrid set of rules, mixing elements of section 288 of the Town and Country Planning Act 1990 with judicial review. The challenge is to be brought within six weeks of the designation of the NPS, but in accordance with judicial review procedure, ie there is a permission stage at the outset to filter out unmeritorious claims.

NPSs will undoubtedly generate strong, differing views and in some cases attract determined opposition. The Government will need to be meticulous in observing due process if it is to avoid (or defeat) challenges in the courts in respect of NPSs.

Nationally Significant Infrastructure Projects

Table 2 sets out the types of projects which will be NSIPs in England. In some cases (mostly in the energy sector) the list additionally applies to Wales and, in one instance, Scotland. The philosophy behind the Act is not to disturb the devolution settlement, ie projects currently authorised in Cardiff or Edinburgh, rather than Whitehall, will not be transferred to the IPC.


Associated Development

A DCO may also authorise Associated Development but only at the same time as the NSIP concerned. Associated Development is development which is:

  • associated with the NSIP;
  • not the construction or extension of one or more dwellings;
  • to be carried out in England or the territorial sea adjacent to England or, in the case of development in the field of energy, in a REZ (except any part where the Scottish ministers have functions); or
  • to be carried out in Wales and comprises surface works, boreholes or pipes associated with underground gas storage by a gas transporter in natural porous strata.

The IPC will decide whether development is Associated Development, having regard to the guidance issued by the SoS.

The guidance which has been issued by the SoS contains a set of general principles to be applied to determine what constitutes Associated Development. Such development should not be an aim in itself but should be 'subordinate to, and necessary for the development and effective operation, to its design capacity, of the NSIP'. The guidance gives examples of the types of development which may qualify as Associated Development. This includes general examples, eg the formation of a new or improved access or mitigation measures; and sector-specific examples, eg in relation to transport infrastructure, retail/business space where this is not disproportionate to the retail/business space normally found in similar types of infrastructure of a comparable capacity.

Ancillary Matters

In addition to authorising the NSIP and any Associated Development (and the compulsory acquisition of land or rights in or over land or water) a DCO may also authorise a range of ancillary matters including the operation of a generating station, the use of underground gas storage facilities, the operation and maintenance of a transport system, the diversion of watercourses and discharges of water into inland waters or underground strata, the creation of harbour authorities or changing their powers, the sale/exchange or appropriation of green belt land (or freeing land from such restrictions), the carrying out of surveys, the removal of trees, the removal/disposal/re-siting of apparatus, the stopping up or diversion of highways, the abrogation or modification of agreements relating to land; and the charging of tolls, fares or other charges.

A DCO may in addition modify, disapply, repeal or amend provisions of certain Acts of Parliament, but may not create criminal offences or allow the creation of byelaws.

DCOs can also make provision for promoters to enter into an agreement with police authorities for the provision of police services.

Infrastructure Planning Commission

The Act provides for the establishment of a new body – the IPC.

The SoS is responsible for appointing the Chair of the IPC, Deputy Chairs and other commissioners. All appointments are for a fixed period of 5-8 years. Sir Michael Pitt has been appointed as Chair of the IPC. There are two Deputy Chairs and, in all, a total of approximately 39 commissioners have been appointed.

The IPC opened for business on 1 October 2009. Since then it has been advising applicants for DCOs (including providing screening and scoping opinions for environmental impact assessment) and other interested parties. Promoters should be aware that requests for advice or other queries raised with the IPC are logged on the IPC's website. The offices of the IPC are based in Bristol and co-located with the Planning Inspectorate.

Development Consent Orders

A DCO will be required in respect of each NSIP.

The DCO will take the place of (ie remove the need and ability to apply for) a raft of consents including planning permission; listed building consent; conservation area consent; scheduled monument consent; pipeline authorisation under section 1(1) of the Pipe-lines Act 1962; authorisation under section 4(1) of the Gas Act 1965; notice under section 14(1) of the Energy Act 1976; and consents under sections 36 and 37 of the Electricity Act 1989, in each case in respect of any project which falls within the definition of an NSIP.

In addition, a DCO will take the place of the following in respect of an NSIP: Harbour Revision Orders and Harbour Empowerment Orders, Transport and Works Act Orders, and orders under section 4(1) of the Gas Act 1965.

In respect of certain other requirements (eg for consent under section 34 of the Coast Protection Act 1949 or for a licence under Part 2 of the Food and Environment Protection Act 1985), a DCO can deem the grant of consents and licences.

Development authorised by a DCO must be commenced within such period as is specified in the DCO or, where none is specified, five years from the date on which the DCO is made. Where a DCO authorises the compulsory acquisition of land, any notice to treat must be served within the same five year period. Otherwise, the ability to carry out the project, and the power to acquire the relevant land, will be lost.

Appropriate Assessment

The SoS has made regulations to make provision for NSIPs to be subject to the relevant provisions of the Habitats Directive. These regulations will ensure that where the SoS considers it necessary, NPSs will encourage the management of features of the landscape which are of importance for wild fauna and flora; and that where an NPS is likely to have a significant effect on a European site or a Ramsar site, the NPS is subject to appropriate assessment. In addition, the regulations require that the IPC carry out an appropriate assessment of an NSIP which is likely to have a significant effect on a European or Ramsar site. This means that the IPC may only make a DCO if it has ascertained, on the basis of the appropriate assessment, that the NSIP will not have an adverse effect on the integrity of any European or Ramsar site. Where the likelihood of adverse effects cannot be ruled out, a DCO may only be made where there are imperative reasons of overriding public interest and where there are no satisfactory alternatives.

Environmental Impact Assessment

The SoS has made regulations to make provision for NSIPs to be subject to the requirements of the Environmental Impact Assessment Directive. These provide that the IPC (or the SoS) must not make a DCO unless they have first taken environmental information into consideration. The IPC is the responsible body to which applicants should direct applications for a screening opinion (as to whether development is EIA development) and a scoping opinion (as to the information to be provided in the environmental statement).

Pre-Application Consultation

The Act requires an applicant for a DCO to consult on its development proposals prior to submitting these to the IPC.

In addition to the consultation required in the course of carrying out an appropriate assessment and an environmental impact assessment there are three areas of pre-application consultation which an applicant will have to undertake.

First, the Act and regulations contain a list of local authorities, other public bodies, agencies, owners, lessees and occupiers of land (the Statutory Consultees), and outline the circumstances in which each needs to be consulted on a proposed application for a DCO. This consultation must specify a deadline for the receipt of responses, being not less than 28 days after receipt of the consultation documents.

Notwithstanding this statutory list of public bodies and agencies, the Government, in their published guidance, encourage applicants to consult more widely with other (unidentified) national and regional bodies who may be able to make a contribution to the development of proposals.

Secondly, an applicant must publish notice of a proposed application for a DCO once, in each of The London Gazette, a national newspaper and, in the case of offshore development, in Lloyds List and an appropriate fishing trade journal; and in addition, for at least two successive weeks in two or more local newspapers. The notice must contain prescribed information about the application including details of the applicant, a statement of intention to make the application, a statement on whether the application is EIA development, a summary of the main proposals, particulars of where the detailed proposals, maps and plans may be inspected and a deadline for the receipt of responses, being not less than 28 days after the last notice was published.

Thirdly, an applicant must consult persons living in the 'vicinity of the land.' Before doing so the applicant is required to consult the local authority on the preparation of a statement of community consultation (SoCC). This is a statement describing how the applicant proposes to consult the local community about its proposals. In preparing the SoCC the applicant must have regard to any response received from the local authority within 28 days of the receipt of the consultation documents. Having prepared a SoCC the applicant must publish it in a local newspaper, and carry out consultation in accordance with the proposals in it.

In the guidance which it has published the Government indicate that a 'one size fits all' approach to consultation is not appropriate and there will be a variety of ways in which the requirement to consult persons living in the vicinity of the land may be satisfied. This will vary depending on the type of proposal and the nature of the community. As well as geographical considerations, the applicant must also consider those who work or use the area and interest groups. The guidance gives examples of consultation techniques that might be adopted including local exhibitions, workshops, telephone advice lines, the internet and the media. Applicants are encouraged to consider iterative phased consultation consisting of two (or more) stages, eg an options stage followed by a preferred options stage, especially for large projects. However, it also declares that consultation will need to be proportionate. The Act and regulations do not specify a minimum period for the receipt of responses but the guidance provides that the public must be notified of the date by which responses must be received.

The guidance note indicates the information which should be included within a consultation exercise. Technical consultees should receive maps, a high level description of the proposals, and an outline of options. In contrast, less detail is required when consulting the local community, although this information should be available to those who wish to view it.

The applicant is required to send the IPC the same pre-consultation information it sends to the Statutory Consultees and this information must be supplied on or before commencing consultation.

The applicant is required to have regard to all relevant responses in determining whether to make an application for a DCO, and the form it should take.

Application for a DCO

The Act and regulations set out the requirements for making an application for a DCO. The application must be in a form prescribed, and must be accompanied by prescribed documentation and other information. This accompanying documentation must include:

  • a report on consultation, giving details of any relevant responses and the account taken of these. If requested by the IPC the applicant is required to make available all responses to its consultation;
  • the draft DCO;
  • an explanatory memorandum; the book of reference;
  • the environmental statement and any screening or scoping opinion;
  • any flood risk assessment;
  • a report on any European or Ramsar sites;
  • in the case of proposed compulsory acquisition, a statement of reasons and a statement explaining how the acquisition will be funded;
  • a report and accompanying plans on sites, features or habitats of nature conservation importance, whether statutory or otherwise; and
  • various land and works plans.

In addition, in the case of the certain NSIPs the applicant must also provide further detailed information specified in regulations.

The relevant NPS may also require the submission of further information.

Fees

The fee payable to the IPC on making an application for a DCO is £4,500. Where an application has been accepted, further fees are payable, to cover pre-examination costs. Where a case is to be handled by a single Commissioner the fee is £13,000; for a case handled by three Commissioners (a Normal Panel) the fee is £30,000; and for a case to be handled by four or more Commissioners (a Large Panel), the fee is £43,000. In addition, there is a daily examination fee for each day that the application is examined. In a case where the application is under examination by a Single Commissioner, the fee is £1,230 per working day; in a Normal Panel case the fee will be £2,680 per working day; and in a Large Panel case £4,080 per working day. The IPC will estimate the number of examination days and thus the total examination fee payable. The applicant will be required to pay 50% of the total estimate following the preliminary meeting. A final payment, representing the relevant daily rate multiplied by the actual number of working days, less the amount already paid (ie 50% of the original estimate) is payable following completion of the examination.

There are also fees payable to the IPC for making requests to require information about interests in land, and to authorise rights of entry to land.

Each request incurs a fee of £1000.

In addition, the applicant will bear the cost of the venue for all hearings.

Model Provisions for a DCO

The Act authorises the SoS to set out model provisions (the Model Provisions) for inclusion within DCOs. Model Provisions have been issued. They are based largely on the contents of the existing Transport and Works (Model Clauses for Railways and Tramways) Order 2006. Some additional provisions of greater relevance to certain other types of infrastructure have also been added. The Model Provisions contain:

  • common provisions which will have application to a variety of NSIPs;
  • provisions which are specific to particular infrastructure types; and
  • model 'requirements' (equivalent to planning conditions) which may commonly be included in a DCO. (These are due to be amended to empower local authorities to approve the details of the requirements).

The DCO must include provision for all NSIP development and Associated Development which the applicant intends to carry out, and any ancillary matters which the applicant requires.

It will not be compulsory to follow the Model Provisions strictly. Applicants will need to modify the Model Provisions for the purposes of their own DCOs. It is the applicant's responsibility to ensure that the draft DCO contains all of the elements which will be required in order to carry out the project.

Compulsory Acquisition by DCO

Where an applicant seeks authorisation for the compulsory acquisition of land or rights in or over land, it will need to include provisions in the DCO (using the Model Provisions as appropriate) to authorise the acquisition.

The applicant will need to provide with its application for a DCO:

  • a statement of reasons outlining the purpose for seeking to acquire the land and a justification for the compulsory acquisition; and
  • a funding statement indicating how the project will be funded and demonstrating that there is a reasonable prospect of the requisite funds being available to acquire the land and implement the project.

A DCO may only authorise compulsory acquisition if the decision-maker is satisfied that the land is required for the development; or is required to facilitate or is incidental to the development; or is replacement land given in exchange; and there is a compelling case in the public interest for the compulsory acquisition. Among other factors this will include demonstrating to the satisfaction of the decision-maker that all reasonable alternatives to compulsory acquisition (including modifications to the scheme) have been explored and that the land to be taken is necessary and proportionate.

Promoters are encouraged to use alternative dispute resolution throughout the compulsory acquisition process, and enter into agreements with those whose land is affected to guarantee minimal levels of compensation (but without prejudice to the rights of claimants to refer any claim to the Lands Tribunal should they wish to do so).

Special provisions apply in respect of the compulsory acquisition of land owned by a local authority; land acquired by a statutory undertaker for the purpose of its undertaking; land held by the National Trust; and commons (including town and village greens); open spaces and allotments. Depending on the category of land, these provisions require the applicant to obtain a certificate from the SoS; follow certain parliamentary procedures; or provide replacement land; before compulsory acquisition can be authorised.

Acceptance of an Application

Before accepting an application the IPC must be satisfied that a DCO is required; that the form and content of the application comply with the requirements of the Act and regulations; and that the applicant has complied with the pre-application consultation duties imposed on it. In considering this last matter the IPC must consider the extent to which the applicant has had regard to the SoS's published guidance on pre-application consultation. Within 28 days of receipt of the application the IPC must decide whether or not to accept the application. If satisfied on these matters the IPC will give the applicant notice of the acceptance of its application.

The applicant must then give notice of the acceptance of its application (an Acceptance Notice) to the relevant local authority; a list of specified public bodies; every owner, lessee tenant or occupier of the land; any person interested in the land or having the power to sell or release the land; and any person who might be entitled to make a claim under section 10 of the Compulsory Purchase Act 1965 or under Part 1 of the Land Compensation Act 1973. In addition, the applicant must publish notice of acceptance of its application in the press in the same manner as that outlined above in relation to pre application consultation. The applicant must then certify to the IPC that these requirements have been complied with.

Period for Representations and Objections

When the applicant gives and publishes an Acceptance Notice, it must also specify a deadline (being not less than 28 days after publication of its notice) for the receipt by the IPC of representations in respect of the application.

Interested Party

The expression Interested Parties includes the applicant; a range of public bodies; relevant local authorities; persons interested in land which is to be compulsorily acquired; and persons who have made representations in respect of an accepted application, (on a prescribed form containing an outline of the principal submissions they intend to make) which is received by the IPC within the deadline specified, being a date not earlier than 28 days after the giving or publication of the applicant's Acceptance Notice (Relevant Representations). Interested Parties are given a special status and entitlement to participate in the process of examining an application. While only Interested Parties have this right, the examining authority is, in its discretion, able to permit other persons to submit written representations or make oral representations about the application at any hearing.

Examining Authority

The chair of the IPC will decide whether an application is to be examined by a Panel or a Single Commissioner, having regard to guidance issued by the SoS. In making this decision the chair of the IPC will have regard to:

  • the complexity of the case; eg whether it raises novel issues or complex legal or technical considerations; requires consideration of policy in more than one NPS: or involves analysis of policy issues (eg because there is no designated NPS); and
  • the level of public interest.

In his guidance the SoS has indicated that he considers that the panel process would be appropriate for the more complex and contentious applications. The guidance says that the single commissioner process would be appropriate for smaller and less complex projects, eg highways or standalone electricity line schemes. The same guidance says that the SoS expects that aviation and nuclear power projects will almost certainly require to be examined by a panel. The main issue for resolution in these cases will be the size and composition of the Panel but the largest and most complex cases will usually be handled by a panel of 5 commissioners.

Panel Procedure

A Panel will comprise three or more commissioners, one of whom will act as chair. Where there is an NPS in force, the Panel will examine and decide the application. A decision by the Panel requires the agreement of a majority of its members.

Where there is no NPS in force for any particular project, then the Panel can only examine the application and prepare a report with a recommendation to the SoS. In these circumstances, the decision will be made by the SoS.

Single Commissioner Procedure

Where a Single Commissioner examines the application he/she will produce a report setting out his/her conclusions on the application, with a recommendation that goes to a separate body of commissioners to be called the Commission's Council (Council) which will make the decision where an NPS exists. In the absence of a relevant NPS, the report and recommendation of the Single Commissioner will go to the SoS for decision.

Assessors and legal assistance

The IPC may appoint an assessor to sit with the examining authority and, in addition, may appoint a barrister, solicitor or advocate to provide legal assistance, which expressly includes oral questioning of any party.

Initial Assessment by the IPC

The examining authority will make its initial assessment of the issues arising in respect of the application within 21 days of the expiry of the date specified in the applicant's Acceptance Notice, for the receipt of representations.

Preliminary Meeting

After it has made its initial assessment, the examining authority must give at least 21 days notice of the date, time and place of the preliminary meeting to the applicant, all Interested Parties and other persons it chooses to invite. At the same time it must notify such persons of the matters it wishes to discuss at the meeting, and what it considers are the key issues. It may also give an indication of those matters which it considers do not need to be considered in great detail during the examination process. The SoS considers that a preliminary meeting should be held within six weeks of the deadline for the receipt of Relevant Representations.

The examining authority will preside at the meeting and will determine the procedure, the matters to be discussed and the amount of time to be allocated to each matter, allowing for any oral representations. Guidance indicates that the kind of issues the examining authority might consider it appropriate to deal with include impact of the development on the locality such as noise, air quality and quality of life. As soon as practicable after the preliminary meeting the examining authority will prepare a note and circulate this to all Interested Parties and to those who attended the meeting.

Timetable

At the preliminary meeting or as soon as practicable thereafter the examining authority must set a timetable for its examination of the application and must specify:

  • the date by which further written representations must be received;
  • the period within which the examining authority will ask written questions and seek further written information;
  • the period within which the applicant and Interested Parties will have the opportunity to comment on any Relevant Representations, written representations and responses to written questions;
  • the period within which the applicant and any Interested Party must agree a statement of common ground;
  • the date by which an Interested Party must notify the examining authority of its wish to be heard at an open floor hearing;
  • the date by which a party having an interest in land which the Applicant is proposing to compulsorily acquire (an Affected Party) must notify the examining authority of its wish to be heard at a compulsory acquisition hearing;
  • the date of any specific issue hearing;
  • the date by which any summaries of relevant and written representations must be received by the examining authority; and
  • the date by which any Local Impact Report prepared by a local authority giving details of the 'likely impact of the proposed development' on the authority's area, needs to be received (normally within six weeks of the end of the preliminary meeting) and, by which comments from Interested Parties on such report should be received (not less than 21 days from receipt of the report).

Hearings

The examining authority must give at least 21 days' notice to persons of their right to request an open floor hearing or a compulsory acquisition hearing.

As soon as practicable after the expiry of this deadline, the examining authority must notify all Interested Parties of the date, time and place fixed for an open floor hearing and a specific issue hearing, and provide the same information to Affected Parties in respect of a compulsory acquisition hearing. The examining authority must ensure that at least 21 days' notice is given of such hearings.

Procedure at Hearings

The examination of applications is to be carried out in public except in the rare cases where the SoS intervenes in the interest of defence or national security and directs that representations on such matters are to be made to a specified person in private.

The examining authority will preside at any hearing and determine the procedure, identify the matters to be considered at the hearing and the matters on which they require further explanation from persons entitled to make oral representations.

As a general rule the examination of every application is to take the form of the consideration of written representations. This rule is subject to three exceptions:

  • if an Interested Party requests the opportunity to make oral representations then it may do so at an 'open floor hearing';
  • the examining authority may decide that consideration of oral representations is necessary to ensure adequate examination of a particular issue or to ensure that an Interested Party has a fair chance to put its case. In such circumstances they must arrange a 'specific issue' hearing; and
  • where land is proposed to be compulsorily acquired, an Affected Person can request a 'compulsory acquisition hearing'.

Where the examining authority is a Panel it may hold two or more hearings concurrently.

At any hearing the examining authority will decide whether a person may be questioned; the matters to which questions may relate; and the amount of time allowed for questions. Further, in allowing questions, the examining authority must apply the principle that oral questioning of a party is to be undertaken by the examining authority, other than where they consider that oral questions by an Interested Party are necessary to ensure adequate testing of any representation or that a person has a fair chance to put its case. In these circumstances they may allow that party to cross-examine another party. However, the examining authority may refuse to permit oral questioning or allow it to continue, if the effect would be that the timetable could not be met.

The examining authority may refuse to allow representations if they consider them irrelevant, vexatious, or frivolous; relate to the merits of policy in an NPS; repeat representations already made; or relate to compensation for compulsory acquisition.

The overall process is intended to be very different from the traditional adversarial approach of a public local inquiry. The examination process is envisaged to be an inquisitorial one controlled by the examining authority, and will undoubtedly reduce the opportunity for objectors to test proposals through cross-examination.

Procedure After Examination Where Examining Authority is Not the Decision Maker

Where the examining authority is not deciding an application, they will make a written report to the decision-maker which will include the examining authority's findings, conclusions and recommendations.

If the decision-maker differs from the examining authority on any matter of fact or conclusion reached by the examining authority, or takes into consideration any new evidence and, as a consequence, is disposed to disagree with a recommendation made by the examining authority, the decision-maker shall not come to a decision without notifying all interested parties of the decision-maker's disagreement and the reasons for it, and affording them an opportunity to make further representations in writing in respect of such matters identified.

Intervention by SoS

The SoS can intervene in an application before the IPC in the interests of defence or national security. Additionally the SoS can intervene if, since the NPS was first published (or last reviewed), there has been a significant change in circumstances; such a change was not anticipated at that time; if it had been anticipated the relevant NPS would have been materially different and would be likely to have a material effect on the decision; and there is an urgent need, in the national interest, for the application to be decided before the NPS is reviewed. The SoS may also specify other circumstances in which the power to intervene may be exercised. Where the SoS intervenes then the examining authority will complete the examination of the application and prepare a report for the SoS who will take the decision.

Decision-Making Test – Panel/Council

In reaching a decision the Panel and Council must have regard to the relevant NPS; any Local Impact Report; any matters prescribed in relation to the development (which include matters which must be taken into account under existing consent regimes); and any other matters considered by the Panel or Council to be important and relevant.

However, the Panel and Council must decide the application in accordance with the relevant NPS except where it would lead to a breach of international obligations; the Panel or Council would be in breach of a duty imposed under any enactment; the decision would be unlawful by virtue of any enactment; or the adverse impact of the proposal would outweigh its benefits.

Decision-Making Test – SoS

In deciding an application the SoS must have regard to any Local Impact Report; any matters prescribed in relation to the development (which include matters which must be taken into account under existing consent regimes); and any other matters which the SoS thinks are important and relevant.

Timetable for Reaching a Decision

The examining authority is under a duty to complete the examination of an application within six months of the preliminary meeting with the applicant and Interested Parties. In addition, the Panel and Council are under a duty to decide the application (or refer their report to the SoS) within nine months of the preliminary meeting. These periods may be extended by the Chair of the IPC.

Any application which is referred to the SoS must be decided within three months of receipt of the report from the examining authority. This date may be extended by the SoS.

Planning Obligations

The Act enables local planning authorities to enter into agreements with applicants (in the same way as they do with developers seeking planning permission) and these obligations will be enforceable by the local planning authority. However, only the IPC (or the SoS as the case may be) will be able to modify or discharge a planning obligation entered into in connection with a DCO application.

Challenging DCOs

A decision to grant or refuse a DCO may be challenged in the courts on the same basis as that outlined above in relation to NPSs. The fast track timetabling rules (if not applied flexibly and sensibly) and the restrictions on cross-examination seem likely to give rise to claims for breaches of human rights, and it remains to be seen how the courts will deal with these.

Practical Considerations for NSIP Promoters

The promoters of NSIPs will wish to:

  • identify the relevant NPS or NPSs for their project and seek to influence the development of the emerging document(s) to ensure that their specific proposals (once applied for) will fall within and be compliant with the relevant NPS or NPSs;
  • begin early to commission the extensive environmental impact work which will undoubtedly need to be undertaken to support an application for a DCO;
  • identify the scope of the NSIP, the extent of any Associated Development required, the need for compulsory purchase powers, and Ancilliary matters, namely the numerous bespoke authorisations and powers (including any departures from the Model Provisions), which will need to be included in a DCO;
  • develop a detailed and effective consultation strategy in respect of the project, having regard to the statutory obligation to carry out consultation;
  • consider the practical effects and consequences of the existence (or absence) of an NPS at the time of making an application for a DCO;
  • undertake a detailed 'case building' exercise to prepare the project thoroughly for eventual presentation to, and examination by, the IPC; and
  • engage with the host (and neighbouring) local authorities to explain and seek their support for the project (see our separate guide for local authorities).

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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