UK: The New Planning Process For National Infrastructure Projects - July 2012

Last Updated: 24 July 2012
Article by Angus Walker and Robbie Owen

The Planning Act 2008 (Act) introduced a radical new regime for authorising nationally significant infrastructure projects (NSIPs).

LOCALISM ACT CHANGES IN EFFECT

In April 2012, the Coalition Government made important changes to this regime. 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 retained, but sit within a new system of national planning guidance. These 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. The Localism Act does not amend the list of (or thresholds for) such projects, although waste water transfer projects have been added by separate means.

The Infrastructure Planning Commission (IPC) which used to be the decision-making body in respect of NSIPs has been abolished, and its functions transferred to a national infrastructure directorate (NID) within the Planning Inspectorate.

The Act creates a completely new form of authorisation – the development consent order (DCO), which authorises the construction and operation of NSIPs, and largely replaces the myriad of consents previously required for major infrastructure projects. The Localism Act does not disturb or amend the DCO concept or the procedures for its submission and examination but, in future, these procedures will be operated by the NID and the final decision on a DCO will be taken by the SoS.

DESIGNATION OF NPSs

The former Government ran out of time and was unable to designate any NPSs before the election. The Coalition Government, however, has designated eight NPSs – six on energy, one on ports and one on waste water – and a ninth awaits designation – hazardous waste.

Designation of the NPSs completes the missing element of the new regime in respect of energy, ports and waste water NSIPs namely, the establishment of the necessary policy against which such projects will be examined and determined. The NPS for roads and railways, the so-called National Networks NPS, has been long awaited but has been held up by a series of delays and is not now expected until 2013.

NSIPs – BUSINESS AS USUAL

Despite the abolition of the IPC it has been business as usual for the dozen or so 'live' applications that had been made to it, as the process transferred seamlessly to the Planning Inspectorate. Having said that, the lower than expected number of applications since the inception of the regime in March 2010 – only 17 in total to date – reflects the difficulties with getting to grips with the new regime, and the abolition of the IPC may also have dissuaded promoters from making applications around that time.

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.

REGULATIONS AND GUIDANCE

Regulations are in force dealing with the detailed operation of the new system. These cover: application procedures (including prescribed forms for making DCO applications); 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. This guidance is currently in the process of being revised in the light of experience of the regime – in particular the pre-application and local authority guidance notes are to be merged. The IPC had published guidance on pre-application stages and on the preparation of application documents but these have since been withdrawn; although their suite of advice notes has been carried forwards by the Planning Inspectorate. These cover a range of topics such as local impact reports, scoping opinions, habitats assessments and transboundary effects.

'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, and the energy and transport sectors were duly the first to be switched on (1 March 2010), followed by the waste water (April 2011) and hazardous waste sectors (October 2011). The water supply sector was not switched on in April 2012 as originally planned and a switch on is not currently timetabled. PINS must receive applications from these dates irrespective of whether the relevant NPS has been designated.

An energy, transport, waste water or hazardous waste project constituting an NSIP can now only be authorised by way of a DCO, although an application for consent or permission for a project submitted under procedures in existence before the relevant switch-on date, can continue under those procedures.

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 although one of those – airports – no longer features in the Government 's timetable of proposed NPSs. Details of these, NPSs including particulars of those 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 must also allow the Commons 21 days to have a chance to disapprove of the NPS, before designating the same if no such disapproval is forthcoming.

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 are 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 PINS.



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.

PINS 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.

THE PLANNING INSPECTORATE

The Act provided for the establishment of a new body – the IPC, but on 1 April 2012 its functions were taken over by the Planning Inspectorate on behalf of the SoS.

The IPC opened for business on 1 October 2009 and during its existence advised applicants for DCOs (including providing screening and scoping opinions for environmental impact assessment) and other interested parties, and this work has been carried on by PINS. Promoters should be aware that requests for advice or other queries raised with PINS are logged on the PINS website. The offices of PINS are based in Bristol.

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 Part 4 of the Marine and Coastal Access Act 2009), 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 PINS 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 SoS may only make a DCO if he or she 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 SoS must not make a DCO unless they have first taken environmental information into consideration. PINS 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 PINS.

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 a summary of 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 PINS 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.

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