UK: Planning Act 2008 Regime Summary As Of 31 May 2013

Last Updated: 10 June 2013
Article by Angus Walker

Today's entry is a summary of the regime for authorising major infrastructure projects introduced by the Planning Act 2008, amended by the Localism Act 2011 and the Growth and Infrastructure Act 2013.

This is the thirteenth summary, which is updated and reissued every few months. For more detailed information, you can get hold of our free 16-page brochure on the Act - click here to obtain one. For a complete picture of the new regime, Bircham Dyson Bell has written a book on it, published by Butterworths at the end of July 2009. Click this link for more details. A second edition is on the cards, planned for later this year.

The Planning Act 2008 was introduced to speed up the authorisation of major infrastructure projects, following a series of lengthy and high-profile consents such as Terminal 5 at Heathrow Airport. For the first time, a common regime has been introduced for different types of infrastructure.

Each aspect of the consent process was examined and altered to speed it up, while maintaining (although this was disputed at the time) the scrutiny of and public participation in consideration of applications.

The main innovations were as follows:

  • policy would be set out in advance in a series of National Policy Statements (NPSs) rather than time being taken up deciding whether a particular application was needed during its consideration;
  • consultation would be required before an application was submitted, to identify issues and allow changes to be made before they were too expensive and difficult to make;
  • consideration of applications would be largely done in writing, with no public inquiry, limited opportunities for hearings, and even more limited opportunities for cross-examination;
  • fixed timescales would be introduced for considering applications; and
  • the stage of ministerial approval of an inspector's report would be eliminated, with the examining body making the decisions.

Subsequently, following the change of government in 2010, the Localism Act 2011 was passed and reinstated ministerial approval of inspectors' reports (with a three-month time limit), but otherwise the essential elements of the regime emerged unscathed. Other minor changes were made by the Localism Act, and further small changes are in progress via the Growth and Infrastructure Act 2013, passed in April.

The Act sets out which types of infrastructure it applies to, and for each one sets out a threshold above which a project is considered a 'nationally significant infrastructure project' (NSIP). For example, if a new onshore electricity generating station is to be built, whether it is a wind farm, an energy from waste project or any other type, it must use the Planning Act regime if its capacity will be more than 50 megawatts. There are sixteen types of infrastructure covered, restricted to the fields of energy, transport, water, waste and waste water, and the Growth and Infrastructure Act will also allow certain business and commercial projects to use the regime once regulations have been passed setting out the types of project and corresponding thresholds.

It is important to note that using the Planning Act regime is compulsory for infrastructure projects above the thresholds, indeed to start building one that should have used the regime for authorisation is a criminal offence. For business and commercial projects the regime will be optional, however.

National Policy Statements

NPSs are intended to set out the extent to which infrastructure of the type they cover is needed, and the impacts that promoters of projects should address in their applications and inspectors should consider when examining them.

This first element of the new process has had a patchy history. Twelve NPSs were originally envisaged: six on various types of energy NSIP, three for transport and three for water and waste. More than four years after the Act was passed, only eight of the twelve have been finalised ('designated') and a ninth has been languishing in draft for nearly two years.

Six energy NPSs: one overarching one ('EN-1'), one for fossil fuel electricity generation ('EN-2'), one for renewable energy generation ('EN-3'), one for gas and oil transmission infrastructure ('EN-4'), one for overhead electric lines ('EN-5') and one for nuclear power electricity generation ('EN-6') were designated in July 2011. One transport NPS for ports was designated in January 2012, and one for waste water was designated in March 2012. The Hazardous Waste NPS was published in draft in July 2011 and its designation is apparently fairly imminent.

There is no sign of the remaining three proposed NPSs: 'national networks' (i.e. road, rail and rail freight), airports, and water supply.

The idea is that once a type of infrastructure has an NPS in place, objections to applications in that field cannot question what it contains. The waste water and nuclear power NPSs are the only two that give locations that are suitable for new infrastructure and thus the choice of location cannot be questioned for a particular project.

Nationally significant infrastructure projects

'NSIP' is rather close to 'NPS' (and an anagram of PINS to boot) but if you pronounce the former 'ensip' it helps to distinguish it.

The 16 types of NSIP are:

  • electricity generating projects of all types;
  • overhead electric lines;
  • underground gas storage;
  • LNG facilities;
  • gas reception facilities;
  • gas pipelines;
  • other pipelines;
  • highways;
  • airports;
  • harbours;
  • railways;
  • rail freight interchanges;
  • dams/reservoirs;
  • water transfer facilities;
  • waste water treatment plants and
  • hazardous waste facilities.

The only change to the list since it came in has been to extend waste water projects to include waste water storage and transfer projects, which means that the proposed Thames Tideway Tunnel project is able to use the regime, the application having been made at the end of February. Threshold changes are also to be made soon to the electric line, railway and highway thresholds.

The Planning Act regime was 'switched on' for energy and transport projects on 1 March 2010 - that is the date that applications for NSIPs had to be made to what was the Infrastructure Planning Commission but is now the Planning Inspectorate. The regime was extended to waste water projects in April 2011 and to hazardous waste projects in October 2011, but it has not yet been switched on for water transfer, dams or reservoirs, with no proposed date in sight.

It is generally forbidden for a project below the threshold to use the regime, although the government can decide that a below-threshold project, a project outside the descriptions in the Act (as long as it is an energy, transport, water, waste water or waste project, and soon some business and commercial projects) or a cluster of projects should be considered an NSIP. The government originally said it would do this for the Thames Tideway Tunnel but chose to amend the threshold instead. The Localism Act has made 'upgrades' easier - now, requests can be made before any application is made under the below-threshold regime. One project is known to have been upgraded in this way so far: the proposed Silvertown (road) tunnel in east London.

Once regulations under the Growth and Infrastructure Act have come into force, certain types of business and commercial project will be able to apply to come into the regime using this route. This could cover projects from sports stadia to quarries - a consultation on the list closed in January and the government is considering the responses.

Planning Inspectorate

The Planning Act created an independent body to examine and decide applications, the Infrastructure Planning Commission, but in April 2012 this was abolished and applications are now made to and examined by the Planning Inspectorate (PINS). Each application is examined by 1, 3, 4 or 5 inspectors appointed by PINS, depending on its size and complexity. The application process can be broken down into steps as follows:

  • Once PINS receives an application, it has 28 days to decide that it is of a sufficient standard that it can proceed to examination.
  • Once an application has been accepted, the applicant must then advertise it, with a period for making representations of at least 28 days.
  • After the end of the representation period, PINS sets a date for the first public meeting about the application, the 'preliminary meeting'. This is usually a couple of months later.
  • The preliminary meeting kicks of a maximum of six months for examining an application, covering a series of deadlines for written submissions and the holding of one or more hearings.
  • After the end of the examination, PINS has three months to make a recommendation to the relevant Secretary of State.
  • The Secretary of State then has three months to make a decision on the application. The deadlines can be extended exceptionally and this has happened once to each daadline so far.

PINS maintains a log of advice it gives and projects it is expecting on its website. To date, it has received 34 applications since they had to be made to it on 1 March 2010: it has declined to accept two of these, a third was withdrawn before an acceptance decision was made and a fourth is currently waiting for a decision. Of the 29 to be accepted, three were withdrawn later, eight have made it all the way through the process to a positive decision at the end and one received a negative decision. Three of the positive decisions and the negative decision are currently the subject of judicial review proceedings. The remaining 18 applications are still 'live', i.e. under active consideration and not yet decided.

One of the tweaks made by the Growth and Infrastructure Act is to reduce the triggers for 'special parliamentary procedure', an additional approval process that one project underwent over 16 months.

Behind the live applications, 19 more projects have started their formal pre-application consultation, and a further 41 expected projects have made themselves known to PINS.

Community Infrastructure Levy

The Planning Act 2008 also introduced 'CIL' ('sill') or the Community Infrastructure Levy. This is a separate innovation to the new regime for authorising NSIPs outlined above. It is designed to formalise a tariff system for developments (consisting of buildings) getting planning permission to contribute to the infrastructure burden that they will create. It is up to each local authority to decide whether to introduce it and how much to charge. The authority must have completed the first iteration of its local development framework, must then publish a 'charging schedule' for its CIL and hold an examination into it if there are any objections. Only then can it start to charge CIL.

Around 120 local authorities have at least published a draft charging schedule - details can be found on Planning Magazine's 'CIL watch' pages. CIL has come into force in 14 council areas so far: Bristol, East Cambridgeshire, Elmbridge, Huntingdonshire, Newark & Sherwood, Poole, Portsmouth, Shropshire, Wycombe, the London Boroughs of Barnet, Croydon, Redbridge and Wandsworth and London-wide.

Income from CIL is ring-fenced and must be spent on 'infrastructure' - which for this purpose has a wider meaning than in the rest of the Act, and may be widened further. The government has made changes to the CIL regime more or less annually since it was first brought in by means of amending regulations, plus a couple more changes in the Localism Act.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Angus Walker
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.