UK: National Infrastructure Plan 2013, National Networks NPS And 2014 Review All Published

Last Updated: 6 December 2013
Article by Angus Walker

Today's entry reports on three significant developments affecting the Planning Act 2008 regime.

Although the Autumn Statement isn't until tomorrow, it is already looking like an also-ran as three major announcements are made today by three different government departments on the biggest day for infrastructure policy for more than a year.

National Infrastructure Plan 2013

The Treasury launched the third edition of the National Infrastructure Plan (NIP) this morning. I attended the press conference accompanying the launch, where Chief Secretary to the Treasury Danny Alexander MP and infrastructure minister Lord Deighton spoke.

The NIP can be found here and contains several significant planning-related announcements, as follows:

  • The 'Top 40' list of projects and programmes has been refreshed with a few changes and more detail (pages 79-82).
  • The government has established a 'Major Infrastructure Tracking' unit within Infrastructure UK to track the progress of each project (paragraph 5.15).
  • The government will 'ensure' that any Top 40 project that is not already and NSIP is able to use the regime, and being a Top 40 project will make a positive decision more likely (7.36).
  • Further to an earlier consultation exercise, the government will introduce a specialist planning court with set deadlines to handle planning judicial reviews and may introduce other reforms as well (7.37).
  • Fees for NSIP applications will not increase until at least May 2015 (7.40).
  • The government will consult on a statutory requirement to have a Local Plan in place (7.42).
  • The government will introduce legislation so that Where a planning authority has failed to discharge a condition on time, it will be treated as having been approved, and will consult on planning authorities having to provide more justification for imposing conditions (7.43).
  • The government will consult on reducing unnecessary statutory consultations (7.44).
  • The government will develop a pilot programme of passing community benefits of development directly to households (7.45).

Analysis

This National Infrastructure Plan looks much more like a plan that its predecessors. It identifies what the UK needs in each sector and what projects are in the pipeline to meet that need. The one thing that seems to be missing to me (and would have been my question to Danny Alexander had I caught his eye) is that I can't see anything setting out where (or indeed if) there is a gap between need and the pipeline - i.e. if the pipeline will not deliver everything that is needed, what is missing and what the government will do about it. With that one extra ingredient, I think that it would be a true National Infrastructure Plan for the first time.

On the Top 40, note that 'managed motorways' are now called 'smart motorways'. Hinkley Point C and Wylfa (Wylfa Newydd, or New Wylfa) are mentioned as new nuclear power stations, but not any others such as Sizewell or Oldbury. In fact the only other energy projects mentioned by name are a couple of carbon capture and storage and electric line projects. Shale gas gets included for the first time - there is some room in the list for new entries where for example highway schemes have been merged into a single entry.

On the specific measures, if the government really wants to ensure that all the Top 40 projects can use the Planning Act regime, it will have to make changes to the Act, since some of the projects are not currently in the fields that the Act covers. I am thinking of numbers 26-29 (digital communications), 32 (flood defences) and 33-35 (science and innovation), although some of the last category may be able to take advantage of the new business and commmercial category of 'research and development of products and processes'. Number 40 of the Top 40 covers projects funded by the Growing Places Fund and the Regional Growth Fund, so may also include projects not in the fields of energy, transport, waste, waste water or water, or the nine categories of business and commercial project. Is the announcement in the NIP an indication that the Planning Act will be expanded further? Possibly, but probably not.

The promise not to increase fees is probably something that wasn't going to happen anyway (unless for pre-application advice), but it is useful to have it in black and white (or red and white, actually).

The proposed planning reforms suggest an impatience with the speed of councils in producing local plans, and imposing and discharging conditions.

National Policy Statement for National Networks

I can hardly believe that it has finally been published, but the National Policy Statement (NPS) for road, rail and rail freight projects is here, having had an original publication date of November 2009.

There is a consultation document that can be found here and the draft NPS itself can be found here. The consultation runs until 26 February 2014, so you can read it at some leisure, and Parliament has even longer, until 21 May, to consider it. There are seven other accompanying documents, including an FAQ, which can all be accessed from this page.

The NPS deserves its own blog entry, which will be written in due course, but in the meantime here are some headlines.

It is not just nationally significant road, rail and rail freight projects that should take the NPS into account: it states in terms that it may be a material consideration for below-threshold projects (paragraph 1.4).

The need for improvements to the existing national road and rail networks and more rail freight interchanges is expressed strongly:

  • there is a compelling need for development of the national road network. (paragraph 2.21);
  • there is a compelling need for development of the national rail network. (2.31); and
  • there is a compelling need for an expanded network of strategic rail freight interchanges (2.51).

There is a slightly less strong expression of need for new road and rail alignments (rather than improvements to existing ones):

'in some cases, to meet the demands on the national road network it will not be sufficient to simply expand capacity on the existing network. In those circumstances new road alignments and corresponding links, including alignments which cross a river or estuary, may be needed to support increased capacity and connectivity to meet the needs created by economic and demographic growth.' (2.23)

'The Government will therefore consider new or re-opened [rail] alignments to improve capacity, speed, connectivity and reliability.' (2.33)

High speed rail should be the preference for major new inter-urban alignments:

'Where major new inter-urban alignments are required, high speed rail alignments are expected to offer the most effective way to provide a step change in inter-city capacity and connectivity, as well as helping to deliver long term sustainable economic growth'. (2.34)

Road tolling is addressed thus: 'Government's policy is not to introduce national road pricing to manage demand on the strategic road network' (3.18). However tolling may be used to fund entirely new roads, existing roads where they are transformed by an improvement scheme, and river and estuarial crossings (the latter 'normally' being funded by tolls). Local and tolling and charging schemes are a matter for local and London traffic authorities. The mention of 'transformed by an improvement scheme' may appear to be aimed at projects such as the A14 improvement between Cambridge and Huntingdon, but the NIP states that this will not now be tolled (page 109).

There is text similar to other NPSs on principles of assessment in chapter 4, covering Environmental Impact Assessment, Habitats Regulations Assessment, alternatives, good design, climate change adaptation, pollution control, nuisance, safety, security and health, and rail freight interchanges get their own section.

Generic impacts are then addressed in chapter 5, namely air quality, biodiversity and conservation, waste, aviation and defence, coastal change, nuisances such as dust, flood risk, the historic environment, landscape and visual, land use (including the Green Belt), noise and vibration, impacts on transport networks and water quality. Developers have to address these in their applications, and inspectors and the Secretary of State have to consider them when making recommendations or decisions. Worth reading, since it says 'the Secretary of State should refuse consent unless ...' in some places.

2014 Review

The 2014 Review gets a mention in the NIP at paragraph 7.35, saying that the review will cover:

  • streamlining consultation and environmental information requirements to speed up the pre-application phase;
  • flexibility to make changes to Development Consent Orders after a decision is made;
  • expanding the scope of the 'one stop shop' for consents;
  • efficiency and flexibility during the examination phases; and
  • strengthening guidance on engagement between the developer, Statutory Consultees, Local Authorities and communities.

In the event, the 2014 Review discussion document, which can be found here, does have five sections, but expressed a bit differently:

  • improving the pre-application phase and ensuring consultation requirements are proportionate;
  • improving the pre-examination and examination phase;
  • making changes to Development Consent Orders after consent is granted;
  • streamlining consents; and
  • improving engagement with local communities, local authorities and statutory consultees.

As promised, this is an unusually open consultation canvassing ideas, albeit focused on the five areas set out above. The government conducted interviews with around 40 'partners' over the summer (myself included) and has set out some of the ideas that they came up with in the discussion document. For the first area, the pre-application stage, the following are listed:

  • further improving the advice from the Planning Inspectorate (PINS);
  • an improved, more structured and transparent pre-application service offer from PINS (which will now have to remain free, at least until the election);
  • providing more advice on drafting the Development Consent Order (DCO);
  • early advice (that isn't published, at least immediately);
  • streamlining bureaucracy and providing greater clarity around procedures and requirements (procedural requirements, not DCO requirements); and
  • highlighting examples of good documentation.

Cut out the middleman: I would be very happy to provide advice on drafting DCOs that I guarantee isn't published, or indeed just draft them. For the second area, pre-examination and examination, the following ideas are canvassed:

  • more flexibility to make changes to applications after they have been made;
  • changing the requirements for relevant representations and written representations (e.g. combining them);
  • faster publication of written submissions (one for PINS);
  • more flexibility on the number of inspectors (i.e. allow two inspectors, currently forbidden);
  • clearer guidance on early agreement of statements of common ground (i.e. 'Statements of common ground should be agreed early!'); and
  • inspectors to consider the timing of the open floor hearing (i.e. perhaps making them earlier in examinations).

For post-consent changes, there are suggestions to simplify even the non-material change procedure, as well as the material change procedure, which currently virtually requires a rerun of the whole process.

On further changes to the 'one stop shop' there is to be a consultation in the new year on this item specifically. The Environment Agency is singled out for its positive 'yes, if' approach to secondary consents.

Finally, on improving engagement, apparently we are soon to be treated to three videos from PINS providing an overview of the regime. Sounds fun. Two ideas are canvassed:

  • further guidance on the importance of both developers and statutory consultees engaging early (i.e. 'Engage early!') and
  • more peer support and sharing of lessons learned for local authorities.

These both sound fairly uncontroversial. I will be looking in more depth at the review, the consultation for which closes on 24 January, the same day as comments on the HS2 environmental statement. I will also be coordinating a response from the National Infrastructure Planning Association. If you haven't joined it yet please do (although you just missed Monday's annual dinner), and if you have, look out for a meeting of the Legislation and Guidance Working Group in the new year.

So there you have a huge day for infrastructure planning - the first of two days in fact, with the Autumn Statement and the Hinkley Point C judicial review hearing tomorrow.

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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