UK: Planning Act Blog 198: Localism Bill - Effect on Infrastructure Planning Explained

Last Updated: 14 December 2010
Article by Angus Walker

This is entry number 198, first published on 14 December 2010, of a blog on the implementation of the Planning Act 2008 (with added Localism). 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 the changes that the Localism Bill would make to the infrastructure planning and authorisation regime.

Yesterday evening, the Localism Bill was finally published. At just over 400 pages long, it is split into two volumes. Here are links to Volume 1 (clauses) and Volume 2 (Schedules). The 'nationally significant infrastructure projects' (NSIPs) chapter starts on page 88. No other accompanying documents have yet appeared, but they are likely to appear on the government web page about the Bill, which is here, or the Parliament web page, which is here is here.

Twelve clauses and one schedule out of the 207 and 24 respectively of the Bill amend the regime for authorising NSIPs introduced by the Planning Act 2008. The good news for those interested in the regime - not least the writer and readers of this blog - is that the regime is largely unchanged. The government is essentially introducing its two manifesto pledges - to reinstate approval of applications by the Secretary of State, and to require Parliamentary approval of National Policy Statements (NPSs) - and addressing some (but not all) of the gaps and anomalies that have been discovered since the Planning Act came into force. I have banged on about some of these, so I'm glad to see that they are being addressed; and to be honest there are some that I hadn't spotted but the changes seem sensible now I see them.

Indeed, all these provisions of the Bill are either a political inevitability (in the case of the manifesto pledges) or an improvement of the existing regime. There is some scope for further changes to be made, but none of the changes that is proposed seem to be retrograde. All the changes amend the Planning Act rather than existing separately to or instead of it, or indeed any regulations made under the Act. The Planning Act lives!

Here is what each of the twelve clauses (and the schedule) does - note that they are not likely to come into force until April 2012, and may be amended by Parliament.

Abolition of Infrastructure Planning Commission (IPC) and related tweaks

Clause 107 abolishes the IPC. All the references to it are removed from the Planning Act by the provisions of Schedule 13. This is mostly done by substituting references to 'the Commission' with 'the Secretary of State'. There are a few extra changes, however, of which the most notable are:

  • removing the ability to prescribe model clauses (why, I wonder?);
  • placing a limit of five on the number of appointed people that can consider an application (while still maintaining the single person/panel system that the IPC used);
  • allowing hearings to be held in private in the interests of defence or national security;
  • introducing a three-month time limit for the Secretary of State to make a decision after an application has been examined (technically the decision deadline is a year after the preliminary meeting - the various deadlines are counted from this date even if a stage is completed early); and
  • allowing development consent orders to include byelaw-making powers, and offences of certain types.

Transitional steps at abolition

Clause 108 allows the Secretary of State to direct what happens to applications that have been received but not yet decided by the IPC at the time it is abolished. The Secretary of State can direct that a Commissioner or Panel of Commissioners that was considering an application should continue to do so. Note that this is discretionary, however, and will be decided at the time rather than now, which may prolong uncertainty.

Parliamentary approval of NPSs

Clause 109 introduces Parliamentary approval of NPSs. It is just approval by the House of Commons (I doubt their Lordships will like that), and if no disapproval is given within 21 days of the final version of the NPS being published, it is approved by default. Two new sections are added to the Planning Act - one allows the Secretary of State to publish new drafts of NPSs without having to comply with the full consultation process if the drafts haven't changed much; and the other allows the period for Parliamentary approval of NPSs to be extended by up to 21 days at a time.

Future amalgamation of further consents

Clause 110 allows new consents to be added to the Planning Act regime (or consents to be removed), but only in England. By that I mean that the regime can be extended so as not to require other consents to be sought separately. Definitely a good thing.

Earlier direction that regime to apply to non-regime project

Clause 111 allows the Secretary of State to declare a project that is outside the Planning Act regime to come within it before an application has been made, within 28 days of being asked. I had previously whinged about the Thames Tunnel (which is in this situation) having to make 14 pointless planning applications before it could use this regime, so this is good news (although too late for the Thames Tunnel, which will be brought into the regime another way - by amending the list of types of NSIP).

Slightly fewer neighbouring authorities

Clauses 109, 112 and 116 amend the definition of neighbouring authorities to reduce it somewhat (although arguably making it more complicated). Quite a few roles are given to local authorities that share a boundary with the authorities that 'host' the project and the previous definition meant that up to 40 authorities could be involved. The change is that county councils are no longer neighbours of district councils and vice versa. Dag nab it, I'm going to have to redo my spreadsheet of neighbouring authorities, but at least this complication is going to make resorting to lawyers for advice more likely! It still doesn't say who the host authority is for an offshore project, though.

Whole SoCC need not be published

Clause 113 removes the requirement to publish the whole of a Statement of Community Consultation (SoCC) in a local newspaper, but just to publish where it can be inspected in a reasonably convenient way. This will mean that SoCCs will be longer from 2012 (sounds like a fashion prediction) as they won't cost £££ to publish.

Wringing more information from landowners

Clause 114 widens the information that can be required from landowners to include all those who might be able to make a claim for compensation - previously you couldn't ask about every category, so this alignment makes obvious sense.

Powers to enter onto land earlier and for more reasons

Clause 115 widens the ability to ask the IPC, sorry, Secretary of State, to allow entry onto others' land. The reasons are widened to include environmental impact assessment and appropriate assessment; the requirement that the land must be going to be acquired compulsorily is removed; and the time limit that the power can only be exercised after pre-application consultation has started is also removed. Good news all round - well, for promoters, at least.

Undiscovered landowners can join in the examination

Clause 116 (as well as redefining neighbouring local authorities) allows the person or panel examining an application to add new landowners as interested parties if they are discovered subsequently, either if they come forward themselves, or at the invitation of the examiner.

More bodies can discharge conditions

Clause 117 extends the definition of requirements (conditions) attached to a development consent to include requirements to obtain the approval of the Secretary of state or any other person (i.e. not just the local planning authority, so bodies like the Environment Agency, I imagine). Actually it never said that the local planning authority normally discharges conditions, so that could still be made clearer.

Minor tweak to compulsory purchase notice requirements

Finally, clause 118 tweaks the publicity requirements for development consent orders involving compulsory purchase. A copy of the order no longer need be served on all those whose land is to be acquired, but they must be told where they can inspect one.

So those are the infrastructure planning changes proposed. They don't look controversial, but are likely to be tweaked and may be added to as the Bill progresses through Parliament. These clauses represent only one Chapter of seven in the 'Planning' Part of the Bill, which is itself one of eight Parts. Let us hope that consideration of them does not get lost amongst the rest of the Bill, as the future of Britain's infrastructure depends on them.

I will be reviewing the rest of the Bill for any relevance to infrastructure planning and authorisation, but in the mean time I note with a wry smile that the clause in the Bill revoking the regional strategies is different to the draft that the Government published in response to losing the CALA Homes court case (see earlier blog entry).

... and finally, here is Steve Bell's take on the Localism Bill ((c) the Guardian).

Previous entry 197: Localism Bill published today

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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