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.

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Angus Walker
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