UK: Light Touch Review Consultation Closing - What They're Saying

Last Updated: 12 July 2012
Article by Angus Walker

Today's entry marks the end of the consultation on the light touch review of Planning Act guidance and what the responses are likely to be.

Tomorrow is the closing date for the public consultation on the 'light touch review' of Planning Act guidance being conducted by the Department for Communities and Local Government (CLG).  See this blog entry for an analysis of the draft documents when they came out with links to them.

I have been involved in drafting the response of the National Infrastructure Planning Association (NIPA).  Last week the Council of NIPA considered a first draft of its response, which had arisen from comments made at a recent working group meeting of lawyers and others.  NIPA has a fair amount to say on the subject, since although there is not yet widespread practical experience of the regime, many of the lawyers involved in live applications have contributed.  I have also seen drafts of some other organisations' responses to the consultation.

The general theme of the responses is similar to my son's school reports: "what you have put down on paper is good as far as it goes, but there is a lot more that you could do".

NIPA response

The initial draft of the NIPA response can be found here, and the final draft will no doubt be published as well, or at least sent to members (so join if you haven't done so already!)

If there are any additional themes to NIPA's response they are fourfold:

  • that the guidance should reflect reality more closely;
  • that the guidance should not infringe the legal requirements of the Planning Act;
  • that the government should declare standards for PINS to handle applications; and
  • that some steps are urgently required.

On the first point, if the Planning Inspectorate (PINS) have adopted a practice for all applications, this should be set out in the guidance so that it is not unexpected.  On the other hand, additional steps that are not required by law should not become the norm for applications unless they are absolutely necessary.  One example is that PINS asks for a 'shape file' of the land that is the subject of the application, but there is no mention of this in the guidance.  I'm not saying that the shape file shouldn't be required, it would just be a good idea to flag this up for the benefit of project planning.

Where timescales were recommended to the IPC in the guidance, these should become firmer commitments now that the author of the guidance and PINS are one and the same legal entity.  For example, the guidance says that the preliminary meeting should be around six weeks after the end of the representation period, but no PM has actually been held that soon so far.  Rather than say this, it could say that PINS will aim to hold the meeting within that timescale, or even that it has a target to do so.

There was a mixed response at the Council meeting to the new guidance that suggests that development associated with an infrastructure project could be 'over specified' to accommodate further projects that would use it.  In simple terms this is to put a bigger cable than you need in the ground in the first place so that you don't have to cause twice (or more) the disruption by relaying a bigger cable later when something else comes along.  The response was mixed because although it is good to avoid the time, cost and disrupton of repeated works, the future development may not come along and the larger impact of the over specificatied kit would have been incurred needlessly.  Perhaps more importantly, it is possibly ultra vires (outside the powers of) the Planning Act since that states that 'associated development' must be associated with the subject of the application.  In some cases it will not be possible to say that all the overspecified infrastructure is genuinely associated with the first project.

In terms of urgent issues, the two main ones are probably a PINS-branded application form that takes into account Localism Act changes - still not available three months after the Infrastructure Planning Commission was abolished - and a process for introducing changes to applications that fall between 'significant' and 'so significant that they are a different project'.

Other responses

Without naming names, I highlight the following additional issues contained in the other responses I have seen: 

  • There is concern at the lack of resources that statutory consultees had, which could lead to delays.
  • PINS should give more advice now that it is not restricted from giving merits advice.
  • The proposed Major Infrastructure and Enviroment Unit should be mentioned.
  • The guidance on examination should stress that arguments based on evidence will carry more weight than more 'emotional' arguments.
  • Clarification is needed on whether appropriate assessment could continue beyond the examination stage.
  • The guidance should state that it is not necessary to re-consult if only small changes are made to a project following consultation.
  • The guidance should state what the Secretary of State will do during the three month decision stage.
  • Consultation with local authorities should suggest a more collaborative approach.
  • The government should consider further suggestions to improve the guidance outside this consultation process.

We shall see how and when the redrafted guidance is finalised.  I hope it doesn't take too long, as I am aware of personnel changes at CLG that might impact on timing.

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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