UK: Three Infrastructure Regulations About To Change

Last Updated: 15 April 2013
Article by Angus Walker

Today's entry reports on changes to three sets of regulations under the Planning Act 2008 coming into force this Saturday.

The Planning Act regime includes a raft of secondary legislation that governs the detail of applying for development consent, examining applications and so on.

Following on from a consultation on 'expanding and improving the one stop shop' held from 26 November to 7 January, to which the government responded last month, the government has decided to introduce amending regulations in three areas:

  • 'clarifying' the fees charged for examinations
  • cutting down the statutory bodies that are consulted and notified about applications; and
  • reducing the consents that need the permission of the body that would have granted them before they can be included in a development consent order (DCO) instead.

Before going into details, I would make two points about these changes:

  • first, they emphasise the changing nature of the Planning Act regime, and the importance of using up to date materials, rather than the Act and regulations when they were originally drafted - in other words, don't try this at home, and
  • secondly, take care as to which applications the changes apply to. They apply to all applications where no formal steps have been taken by tomorrow at all, they don't apply to any applications already made, but it's quite complicated for the remainder, i.e. ones where some formal step has been taken short of making an application.

Fee changes

The fee changes are not really in response to the consultation but in response to representations made during the passage of the Growth and Infrastructure Bill that the basis on which applicants were being charged for examinations was incorrect.

The changes put the basis for charging beyond doubt, but still leave the issue open of applicants who have already been charged.

The new basis is that the daily rate will be charged for every working day between the start and end of the examination - and weekends, if work on the application was 'required' then. Any suspensions of the application while either a National Policy Statement is being reviewed or further environmental information has been demanded do not count, nor do any days that the Secretary of State decides not to charge due to sickness or some other cause. There is a rare lapse from what is now the norm of gender-neutral drafting in that last provision.

I just can't agree with the goverment that these changes do not make any practical difference (it used to say merely that the daily rate was charged when the inspector(s) was/were considering the application), and they are being pretty disingenuous in maintaining that position.

Consultation changes

The consultation changes remove, change and add to consultees. There is a huge list of statutory bodies that are:

  • consulted on draft national policy statements;
  • consulted before Planning Act applications are made;
  • notified of the acceptance of a Planning Act application;
  • invited to the preliminary meeting;
  • able to participate in application examinations even if they didn't make representations;
  • consulted about any extension to compulsory acquisition powers; and
  • consulted about any material changes to a DCO.

The following bodies are removed from the list in each case, although only the first four are removed in Wales. These are those that have either become defunct, never replied to consultation (you snooze, you lose) or asked to be removed from the list.

  • the relevant Regional Planning Body;
  • the Commission for Architecture and the Built Environment;
  • the relevant Regional Development Agency;
  • the Commission for Sustainable Development;
  • the Equality and Human Rights Commission;
  • the Scottish Human Rights Commission;
  • the Homes and Communities Agency;
  • the Scottish Fisheries Protection Agency;
  • the Passengers Council;
  • the Disabled Persons Transport Advisory Committee;
  • the Office of Rail Regulation and approved operators;
  • the Gas and Electricity Markets Authority;
  • the Water Services Regulation Authority;
  • the Water Industry Commission of Scotland;
  • the relevant waste regulation authority; and
  • the relevant local resilience forum.

Some changes are made to reflect other legislative changes where presumably they forgot to change these references at the time.

  • Strategic Health Authorities become the NHS Commissioninng Board and relevant clinical commissioning group;
  • the Marine and Fisheries Agency becomes the Marine Management Organisation; and
  • the Health Protection Agency becomes Public Health England, but they only need to be consulted if the project is 'likely to affect significantly public health' - I can't see any project promoters agreeing to that being the case. If Public Health England are consulted, be afraid.

The relevant police authority has already changed to the relevant police and crime commissioner, whom one or two people elected last November.

In Wales, the relevant local health board and NHS Trusts are added; in England, the Secretary of State for Defence is added for safeguarded or marine land.

The transitional provisions are quite tricky, but as a rule of thumb if the Planning Inspectorate has been formally notified of a forthcoming application or a screening or scoping opinion has been sought for it, then you should stick to the old list.

Consent changes

The consent changes mean that a miscellaneous collection of consents can be included in DCOs without the consent of the orignally-consenting body (in England, but not in Wales), but these have been chosen because they are unlikely to be needed. I doubt any infrastructure projects will involve the import of fish eggs, for example. They only apply to applications not yet made. For completeness, the subject-matter of the consents is as follows:

  • approval of codes of practices by the Health and Safety Executive
  • authorisation of specified practices relating to ionising radiation
  • radiation hazard identification and risk evaluation
  • power to grant seal licences
  • byelaws for protection of nature reserves
  • exceptions for persons with deer licences
  • duties in relation to sites of special scientific interest
  • duty to keep definitive map and statement under continuous review
    byelaws relating to access land
  • land management; avoidance of risk of fire or damage; nature conservation and heritage conservation
  • introduction of fish into inland waters
  • power to limit the import etc of fish and fish eggs
  • consent where no water abstraction or impounding licence
  • disposal of polychlorinated biphenyls and other dangerous substances
    a pesticide control consent
  • hazardous waste registration

So only discontinued lines have been allowed into the one stop shop, and the process still remains something of a bazaar. These are all steps in the right direction, though.

The next changes will come about in a mere month's time once the Growth and Infrastructure Act 2013 hits the statute books.

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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