PINS Drops National Infrastructure Guidance

Today's entry reports on the current status of standards, guidance and advice relating to the Planning Act 2008 regime.

Background

Before 1 April this year, there were four, or possibly five, categories of non-legislative 'support' for the Planning Act regime (to try and use a neutral word not referring to any particular type). These were:

• model provisions,
• standards,
• Infrastructure Planning Commission (IPC) guidance,
• Department of Communities and Local Government (CLG) guidance and
• IPC advice.

Model provisions were in the form of a statutory instrument although were not legislation in themselves. The IPC had to have regard to them when making a development consent order (DCO). In the 19th century, the equivalent of this was 'consolidated clauses' Acts, which contained model clauses for infrastructure bills going before Parliament. The main difference is that with the bills, they merely incorporated the clauses by number, whereas the model provisions are repeated word for word in the DCO.

Standards were issued by the IPC and were mandatory - failure to adhere to them could have meant an application being rejected. Like a tipsy partygoer, the IPC eventually dropped its standards to make it easier for it to accept applications, which it did in September 2011 - see this blog entry.

IPC guidance consisted of two guidance notes, one on pre-application consultation and preparing applications. While it was dropping its standards in September, it merged the two notes into one. Applicants for DCOs had to give reasons for departing from IPC guidance in their applications.

CLG guidance consisted of seven guidance notes on the CLG website. The IPC had to have regard to this guidance but although applicants had to have regard to it, they didn't have to say if and why they were departing from it.

Finally, the IPC produced a series of non-statutory advice notes on various topics, reaching fifteen of them by the time it was abolished. These aren't referred to in the Planning Act at all.

Current situation

The model provisions still exist, but the power to make them in the future has been dropped from the Planning Act, and the obligation to have regard to them has also been dropped. Nevertheless, current advice note 13 still refers to them: "In the absence of relevant guidance published by DCLG, it would be helpful for the Planning Inspectorate to receive a track-change draft of the DCO showing any departures from the model provisions. The Planning Inspectorate would wish to receive such a track-change draft of the DCO both at the pre-application stage and with the formal submission of the application for development consent.". This category has thus disappeared from legislation, but is nevertheless still referred to in advice.

The ability to issue standards has transferred from the IPC to the government, but none has been issued to date. The mandatory nature of standards has been dropped, so although they can still be issued, they have no statutory force. This category is therefore still in legislation but has disappeared in practice.

The single remaining IPC guidance note has recently been replaced by PINS advice note 16, i.e. its status has been downgraded.

The Planning Inspectorate (PINS) has not issued any guidance so far. There is no distinction in legislation between PINS guidance and CLG guidance, since they are both 'the Secretary of State'. This category is therefore still in legislation, but has not appeared in practice.

The current CLG guidance notes are still operative, but CLG has issued six new ones for consultation which are intended to replace the existing ones, the consultation being the 'light touch review' - see this blog entry. Only guidance on preparing applications and pre-application procedure remains in legislation, and must be taken into account, but even the light touch review involves guidance at later stages that is no longer referred to in the Act. The references have been removed because it would not make sense to require the government to have regard to its own guidance. This category is therefore only partly still in legislation, will continue to exist, and is currently under review.

The IPC advice notes have now all been converted into PINS advice notes and republished to take into account the Localism Act changes, plus the addition of advice note 16, referred to above. The advice notes were and remain non-statutory, but in plentiful existence.

PINS have also introduced a useful 'change log' at the bottom of the advice note page, detailing when notes have been replaced with newer versions. The only way to spot this until now was that the date of the advice note changed, and even then you had to have saved the previous version to be able to compare it with the new one to see what had changed. All in all a welcome improvement!

So in summary there used to be four types of support mentioned in legislation, which all existed, and one type that existed but was not mentioned. Now there are one and a half types in legislation, only half of which exists, and two and a half that still exist but are no longer mentioned. Is that clear? Perhaps this table will help - or better still, ask a lawyer who keeps track of such things. You wouldn't want to get it wrong, now would you? It is interesting that what the statute provides and what is actually used in practice are even further apart than they used to be.

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