UK: Packing But Not Fracking - Business And Commercial Project Legislation Published

Last Updated: 6 November 2013
Article by Angus Walker

Today's entry reports on the publication of legislation to extend the Planning Act 2008 regime to business and commercial projects.

Over a year ago now, on 6 September 2012, the government announced that it was making various changes to the planning system to encourage growth. Much of this led to the Growth and Infrastructure Act 2013, and one such provision was to extend the Planning Act 2008 regime for consenting nationally significant infrastructure projects to some business and commercial projects. Although the Act extended the regime at primary legislation level, it needed regulations to set out which types of project were actually covered. A consultation on what projects should be covered was underaken earlier this year.

On Thursday, just managing to make it in October, the government laid the regulations setting out the project types before Parliament. They are only in draft, but are unlikely to change in their final form, likely to be by the end of this year.

The regulations are known as the Infrastructure Planning (Business or Commercial Projects) Regulations 2013. There are several points to note - the regulations are by no means identical to the original consultation proposals.

First, they are wider in scope than the consultation draft, which set thresholds and was quite specific about the types of development within each category. Here is a table comparing the two:

Consultation category Consultation threshold Actual category ('the construction of buildings or facilities for use for the purpose of:') Actual threshold (guidance only)
Offices and research and development facilities Over 40,000m2 gross internal floorspace Office use; research and development of products and processes Not normally less than 40,000m2 gross internal floorspace
Manufacturing and processing proposals Over 40,000m2 gross internal floorspace an industrial process or processes Not normally less than 40,000m2 gross internal floorspace
Warehousing, storage and distribution Over 40,000m2 gross internal floorspace storage or distribution of goods Not normally less than 40,000m2 gross internal floorspace
Conference and exhibition centres Over 40,000m2 gross internal floorspace conferences; exhibitions Not normally less than 40,000m2 gross internal floorspace
Leisure, tourism and sports and recreation over 100 hectares leisure; tourism Not normally less than 100 hectares
Sports Stadia minimum 40,000 seats sports For stadia: not normally less than 40,000 seats
Mixed-use development including, for example, mixed-use business parks over 100 hectares wholly or mainly one or more of the above
Extractive industries (mining and quarrying) Including proposals for: deep mined coal, onshore oil and gas extraction, other mining and quarrying proposals all coal, over 500 tonnes per day for petroleum and 500,000 cubic metres per day for gas, over 100 hectares for other types the winning and working of minerals in, on or under land, not including the winnning and working of peat, oil, coal or gas Important mineral or not normally less than 150 hectares at surface or underground

A 'policy statement' accompanies the draft regulations. I have not found this on the internet yet, but I have been sent it by DCLG, so I can pass it on on request. This consists of guidance about making applications. As expected, the size criteria aren't in the regulations themselves, but are in the policy statement, thus not being hard and fast. Indeed, the statement says that each project will be considered on its own merits.

The categories are generally wider than suggested at the consultation stage - for example, instead of saying 'sports stadia' the category is simply (the construction of buildings or facilities for use for the purpose of) 'sport'.

Fracking is explicitly excluded, as is the winning or working of peat, coal and oil. All those peat diggers will be disappointed. As I have said before, however, I think such proposals are able to request to come within the regime already, as energy infrastructure projects.

On the other hand, it is good news for all the canners and ornamenters out there. 'Industrial process' means making, altering, repairing, maintaining, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article, as well as the getting, dressing or treatment of minerals. The list is actually taken from conventional planning when talking about industrial use classes.

Housing is the only other thing to be explicitly excluded - the construction of one or more dwellings. I suppose that if a development incorporated some existing dwellings it might be OK - would change of use avoid 'construction'? Retail and other ancillary uses can be included, since the projects must consist 'wholly or mainly' of the types above.

To make an application, one should send an email to ncpu@communities.gsi.gov.uk (being the National Planning Casework Unit) and set out the following:

  • details about the nature of the project including its size;
  • the relevant local planning authority or authorities;
  • confirmation that the project falls within the prescribed description; and
  • reasons why the Secretary of State should consider the project of national significance.

Applicants should have regard to the Regulations and ensure that their project meets the requirements set out within them.

Will anyone ever use this ability to bring their business or commercial project within the Planning Act regime. Maybe. Although most projects that bring substantial employment to an area will be hurried through by the local planning authority, there are circumstances where this might not be the case. One or more of the following factors may make the Planning Act regime more attractive:

  • the project is not welcomed locally because of its environmental or other effects;
  • the project has the conditional support of the local authority but it requires a lot of additional expenditure before its support will become unconditional;
  • the project is supported by the local authority but is likely to be 'called in' for determination by the government and thus take a lot longer;
  • the project is supported by the local authority but it does not have the resources or expertise to process it in the required time;
  • the developer doesn't quite have all the land necessary for the project and would wish to have compulsory purchase powers to avoid a ransom situation arising;
  • the project would require a series of consents, not just planning permission, or is otherwise complex in authorisation terms (e.g. there are local enactments or other restrictions preventing the development from being fully realised), which significantly increases its cost or risk of not being approved;
  • predictability of authorisation time is an important factor.

We need a term to describe these projects - we can't call them NSIPs, because they aren't 'I'. I propose NSOPs - nationally significant ordinary projects. Abit forced, but has a certain symmetry to it, I suggest. We are planning to have a session on these on 29 January 2014. Please contact my colleague Charles Clarke if you are interested in attending.

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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