UK: What The Growth And Infrastructure Bill Does For Infrastructure - And Employment

Last Updated: 23 October 2012
Article by Angus Walker

Today's entry reports on the publication of the government's Growth and Infrastructure Bill.

Yesterday, the government took the first step towards implementing the planning reforms announced in the 6 September statement by Eric Pickles MP, Secretary of State for Communities and Local Government, by introducing the Growth and Infrastructure Bill in the House of Commons.

I give more detail on the changes to the infrastructure planning and consenting regime introduced by the Planning Act 2008 but I will give a quick summary of the whole bill since it is highly relevant.  There are no explanatory notes yet (but there is a background note) so this is all gleaned from a fairly superficial read of the Bill, but should give you a flavour of it. [UPDATE: explanatory notes now available here]

The title of clause 1 could also be 'the death of localism' but is 'option to make planning application directly to the Secretary of State'.  The content of the clause isn't a complete free-for-all, however, since it is only 'prescribed' local authorities that can be bypassed and development of a 'prescribed' description.  That means that the government can set out later in regulations which are the naughty local authorities and which types of development can make use of this power.

Clauses 2 and 3 expand the powers to award costs in relation to planning and compulsory purchase matters (where people might have to pay the other side's costs if they behave unreasonably).

Clause 4 adds a test of reasonableness to information a local authority can request in connection with a planning application, to prevent excessively burdensome requests. The inserted subsection starts 'Also, ...' - very modern!

Clause 5 allows requirements to provide affordable housing to be reduced on application.

Clause 6 allows the government to decide that a whole category of land held by local authorities can be disposed of for less than the best price that can reasonably obtained, rather than having to decide each case individually.

Clause 7 seems to allow the government to relax restrictions on installing electronic communications equipment in national parks until April 2018.

Clause 8 introduces a complicated schedule about reviews of mineral planning permissions.

Clauses 9 and 10 appear to make it easier to stop up public paths and bridleways if a planning application would need them to be stopped up.

Clauses 11 to 14 are about making it easier to stop roads becoming public highways by being used for 20 years and for open spaces to become village greens through being used for sports and pastimes.

Clause 15 starts to get onto infrastructure.  The need to tell the government that a power station is to be fuelled by petrol or gas is removed.

Clause 16 is about payments to gas licence holders by other gas licence holders.

Clauses 17 and 18 allow generating station consents (under the Electricity Act 1989, not the Planning Act 2008) to be varied on application, and allow planning permission to be deemed (i.e. not to need to be applied for separately) when applying for a generating station consent.  The variation power would mean that existing Electricity Act consents that needed changes would not need to start again with a Planning Act application.

Clause 22 delays the compiling of the five yearly list of rateable values of property from 2015 until 2017.

Clause 23 is going to be the headline controversy clause - I wasn't expecting it in this Bill. It is the provision where if you are declared an 'employee owner' of a business, you give up employment rights such as the right not to be unfairly dismissed.  You and your employer must both agree that you are an 'employee owner' and you must receive shares worth between £2000 and £50,000 at the time.  Mr Pickes thinks this is compatible with Convention Rights, so that's all right.

The rest of the Bill except the three clauses below are the usual ones about order-making, commencement etc.

Planning Act provisions

Three clauses amend the Planning Act regime. Clause 19 repeals the sections of the Planning Act 2008 that require special parliamentary procedure (SPP) to be undergone if a statutory undertaker or local authority has objected to its land being taken and the applicant is not itself a statutory undertaker or local authority.  The government has heeded my (OK, and others') call to GET RID OF SPP.

It hasn't got rid of it altogether, though.  Clause 19 also allows the government to certify that SPP need not apply when open space land is being acquired and not replaced in individual cases, and National Trust land remains subject to SPP.

Clause 20 modifies SPP itself so that only the issue that triggered SPP can be considered in Parliament - it doesn't re-open the whole application, as is currently happening to the Rookery South project.

Clause 21 is entitled 'bringing business and commercial projects within the Planning Act 2008 regime' and does what it says on the tin.  The section of the Planning Act where you can ask the government to declare that your project should come within the Planning Act regime is replaced altogether to add 'business or commercial project(s) of a specified description' (i.e. we must wait for regulations to find out what types of project are included).  Boris must consent if the business or commercial project is wholly or partly in London.

The test is that the government thinks the project is of national significance on its own or in combination with other projects of the same kind (oddly, an infrastructure project and a business one couldn't be considered together, even though they are often linked).

The clause adds a new procedural section 35ZA to the Planning Act (if you insert a section between sections 35 and 36 you call it 35A, and then if you insert a section between 35 and 35A the convention is that you call it 35ZA).

So that's it. Getting rid of the worst application of SPP is an important improvement and adding flexibility to include other projects is a welcome endorsement of the regime.

Like the Localism Bill, what's in there is good as far as it goes in respect of the Planning Act regime, but there could be more.  One disappointment is that (so far) the Bill doesn't remove all the additional certification procedures thrown in at the end of the Planning Act authorisation regime. Why, for example, does the Secretary of State have to certify to the Secretary of State that land can be taken from a statutory undertaker without serious detriment when the Secretary of State has already examined this?  That made sense when the Infrastructure Planning Commission was examining applications and taking decisions, but not now.  The business and commercial threshold could have included 'complexity' as an alternative to 'national significance' too.

The Bill is supposed to be being rushed through in time to hit the statute books in April 2013, but let's hope there's time to expand its provisions a little more.

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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