UK: Government Scrutinises The Planning Act 2008

Last Updated: 30 October 2013
Article by Angus Walker

Today's entry reports on a 'post legislative scrutiny' analysis of the Planning Act 2008 regime.

This week the government has published a review of the Planning Act regime - not the '2014 review' inviting suggestions for changes, but an analysis of what has happened so far. It is grandly titled ' Department for Communities and Local Government Memorandum – Post Legislative Scrutiny Planning Act 2008' and was laid before Parliament on Monday.

The document acknowledges that whole Act has been commenced except the switching on of the regime for water projects 'because no infrastructure of this type and scale is currently being proposed for development'.

Under 'legal issues', the document refers to Parliamentary criticism of the incompatibility of the Act to special parliamentary procedure, which led to some of the changes to the regime in the Growth and Infrastructure Act 2013. The changes to thresholds for road, rail and electric line projects are mentioned 'to address concerns that some of the original thresholds included in the Planning Act 2008 were capturing development that could not be considered nationally significant.' Since the Act also introduced the Community Infrastructure Levy (CIL), reference is made to regulations amending that regime issued in both 2012 and this year.

In a section headed 'Preliminary Assessment of the Act', the document states that 'it is clear that the new regime is working as intended and is leading to quicker planning decisions', contrasting Hinkley Point C being approved within the 'one year statutory timeframe' (glossing over the fact that the timeframe doesn't start when the application is made) with the Sizewell B project, which took six years to approve from application, including a three-year public inquiry. Not necessarily a random example.

There is some news on each of the remaining National Policy Statements:

  • National Networks - this one 'is expected to be published by the Department for Transport in draft by the end of this year' (I think they're only doing that to counfound the prediction I made in January)
  • Airports - this one 'will be prepared following the report of Airports Commission on Airport Capacity' (i.e. after the next election)
  • Water Supply - plans for this one 'are currently under review, following completion of a strategic review of the quality and capacity of water and wastewater infrastructure by Defra and the Environment Agency' (which didn't stop a waste water NPS from being published, mind you)

There is certainly a theme that water infrastructure is not really engaged with this regime yet.

The document states that 'the removal of the Infrastructure Planning Commission and the restoration of Ministers as the final decision maker is seen as a significant improvement'. Is it? By whom? Tell that to the promoters of the Preesall Gas Storage project and the Able Marine Energy Park, whose projects have been refused and delayed respectively following positive, on time recommendations from the inspectors that examined them. Incidentally, the word 'whom' will now forever be linked in my mind to the news that sloppy English is leading to a 'pedants' revolt' led by one Whom Tyler. Sign me up!

'It is too early to judge the effectiveness of the changes introduced in the Growth and Infrastructure Act'. Indeed, particularly since the secondary legislation that will bring in the business and commercial category, the main change, has yet to be published.

The 2014 Review gets a mention: 'The Department for Communities and Local Government will formally launch the review in autumn 2013 and will publish a discussion document which seeks views from users of the system. The Department expects to report in spring 2014 on a set of proposed changes and improvements to the regime which will include an action plan for delivery.' In fact it gets two mentions, with the following paragraph saying much the same: 'The Department is planning to publish a discussion document in the autumn which will set out the areas where improvements could be made and will seek views from users on the best way to achieve them.' OK, got it.

And that's it on the nationally significant infrastructure regime. At Annex A the 49 pieces of secondary legislation made under the Act are listed. They can be broken down as follows:

  • 13 set out the mechanics of the regime - rules for applications, examinations etc.;
  • 11 are Development Consent Orders for applications made under the Act plus one 'correction order';
  • ten are 'commencement orders', i.e. they brought parts of the Act into force;
  • six made changes to thresholds for nationally significant infrastructure projects;
  • five are to do with CIL; and
  • three are miscellaneous orders made under other parts of the Act - two relating to 'local policing bodies' and one on planning permission in Wales

At Annex B the twelve projects that have been decided under the Act are listed. The document is up to date since only three are asterisked with 'subject to ongoing judicial review', the Heysham to M6 Link Road JR having been recently decided.

So, a succinct analysis of the regime so far. Not much news to blog readers but there is always something of interest, not least the way that the data is presented. The two parties making up the government are as committed to the regime as the previous one that introduced it, and so there is no doubt that it is here to stay.

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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