UK: Planning Act Regime - Are Other Consents Necessary?

Last Updated: 23 January 2012
Article by Angus Walker

This is entry number 312, published on 18 January 2012, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. 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 calls for other consents to be folded into the Planning Act regime.

The Planning Act regime is approaching its second anniversary, and there is now a reasonable amount of experience to draw on. Here is the first of a series of entries with suggestions for how the regime could be improved.

There are six areas where improvements could be made. I deal with the first one here, and will expand upon the others in future blog entries.

  • other consents - there are too many of these, and they are insufficiently tied into the infrastructure authorisation process;
  • change procedure - there should to be a published procedure for when and how changes can be made to an application;
  • consultation database - pre-application consultation would be a lot simpler if a database of consultees was maintained by a central body;
  • National Policy Statements - these should be speeded up, and issued even when there are no developments needed or wanted;
  • no special Parliamentary procedure - this lengthening of the regime is outdated, repetitious and wasteful;
  • simplified wording - the model clauses should be modernised to make them fit for the 21st century.

Other consents

The Planning Act regime was intended to be a 'one stop shop', i.e. all physical development relating to a project and all construction-related consents were to be combined into a single 'development consent order' (DCO). Once consent was given, a promoter should be able to put a spade in the ground, more or less. A one stop shop is not only simpler for promoters, but also for other stakeholders, who can see the application as a whole and don't need to track separate processes with separate consenting bodies. There are operational consents that come later, but here we are talking about consents that enable you to build the thing.

The regime has largely succeeded on the physical development point, although there have been learned debates about complying with guidance that associated development must be both 'necessary for' and 'subordinate to' the main project. That is by the by - my main point is on other consents.

There are a plethora of consents that might be required for an infrastructure project, some commonly-used, some rare and obscure. The Penfold review in 2010 looked at rationalising non-planning consents. The interim review identified 86 different consents that might need to be obtained. These consents have different procedures, are applied for to different bodies, and seldom have a timescale or an incentive for prompt completion.

The Planning Act regime deals with consents in three different ways:

  • 11 of them are explicitly able to be combined in a DCO for all projects - they are 'not required' for Planning Act projects. These include planning permission, Electricity Act consent and listed building consent;
  • a further 42 consents in England and 78 in Wales can be included in a DCO on a case by case basis, but only if the body that would have given the consent allows you to do this. I call these 'consent for inclusion' consents; and
  • any other consents can be disapplied in a DCO under general powers to modify legislation.

The 'not required' consent list is currently fixed, but the Localism Act will allow new consents to be added to it. That is good, but each of the 86 Penfold consents should be considered for inclusion as soon as possible. This won't need primary legislation.

The 'consent for inclusion' consents are worse than useless because you not only have to persuade the original body to give up its consenting powers, which is harder than obtaining the consent from it in the first place, but also persuade the IPC that the consent can be safely avoided via the DCO. (Having said that, I have succeeded on one occasion in getting permission to include a consent on the list in a DCO - hurrah!).

The remaining consents can be disapplied by a DCO, which is effectively the same as saying they can be included in the DCO. The body that would have given consent has to make its case to the IPC if it would rather the consent should be applied for separately, or be subject to conditions.

Meanwhile, the Treasury is expressing increasing concern that secondary consents are taking too long and are not focused on sustainable development. The 2011 National Infrastructure Plan (NIP) states that the government will (page 10):

  • ensure the key consenting and advisory agencies have a remit to promote sustainable development as soon as the National Planning Policy Framework is finalised; and
  • introduce a 13 week maximum timescale for the majority of non-planning consents.

What's more, the EU is proposing a Europe-wide consenting regime (see earlier blog entry) where each member state must either have a full one stop shop or at least have a combined programme and common deadline for obtaining separate consents. That is surely a good idea.

Some say that the entire list of 'consent for inclusion' consents should be revoked (which doesn't need primary legislation either). All consenting bodies should just have to make their points to the IPC on the 'one stop shop' application, as other statutory consultees and interested parties without consenting powers have to do.

That would certainly streamline things, but if it is too unpalatable to get rid of the list altogether, then the consenting bodies should be more integrated into the process. The NIP proposals help, but are piecemeal and don't go far enough. The consents are still being treated too much in isolation and not in the light of the complete project of which they form part.

For any 'consent for inclusion' consents that are retained, the bodies concerned should publish the circumstances in which they will agree to give up their consenting powers to give more clarity to project promoters. The consents may be separate, but they should become part of a common programme, timetable and have similar criteria for approval. The IPC could include the consents in its timetable for the examining the main application.

Part 1 of a 'charter for reform' is therefore to:

  • review the Penfold consents for those that can be included in all DCOs so that this can be done once the relevant part of the Localism Act comes into force;
  • review the 'consent for inclusion' consents and remove all or as many as possible from that category; and
  • for any that remain, require the consenting bodies to publish their criteria for agreeing to inclusion, and subject them to time limits and criteria for acceptance or refusal related to the main project.

This is an issue that has been taken up by the National Infrastructure Planning Association (NIPA), which should lend it some weight. It chimes with EU proposals, the National Infrastructure Plan and the Red Tape Challenge.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Angus Walker
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.