In November 2018 the Planning Act 2008 will celebrate its tenth birthday. Through the Planning Act a new regime for the consenting of nationally significant transport, energy, water, waste water and waste infrastructure projects was born. It was introduced with the aim of providing a faster and structured consenting regime for what it termed nationally significant infrastructure projects (NSIPs).

The birth of the NSIP regime The foundations of the Planning Act were laid in the Planning for a Sustainable Future white paper in May 2007. The white paper recognised the importance of key infrastructure development to the continued sustainability of the country, acknowledging that while the benefits of new and improved infrastructure are often widely dispersed, the impacts tend to be concentrated on a relatively small number of people in their immediate vicinity.

The white paper, and the reviews and studies which informed it, emerged, in part, from the struggles of the Heathrow Terminal 5 application. That application showcased the worst of the then-current regime involving 37 applications under seven different pieces of legislation, a public inquiry which lasted nearly four years and a decision issued over two years after the inquiry closed. Against that backdrop there was also a wider frustration at the inadequacies of the planning system in dealing with large projects, particularly infrastructure projects. The white paper highlighted the challenges faced by major infrastructure projects including the lack of a clear government infrastructure policy; the need for multiple approvals under multiple different statutory regimes, each with different statutory consent processes; lengthy public inquiries; and final decisions being made by multiple decision-makers with different ministerial accountabilities.

When the bill which was to become the Planning Act was first laid before Parliament the summary proclaimed:

... the objective is to streamline [decisions for major infrastructure of national importance] and avoid long public inquiries.

The Planning Act, which received royal assent on 26 November 2008, introduced a new process for the consenting for NSIPs. It was innovative in that it:

  • created 'development consent orders' (DCOs) which brought together the main development consents required into a single consenting process;
  • imposed statutory timescales for examining and determining applications;
  • introduced national policy statements (NPSs) which set out the national policy and need for key infrastructure; and
  • gave private developers the ability to benefit directly from compulsory acquisition powers.

Scope of the NSIP regime Section 14 of the Planning Act, as originally enacted, defined 16 types of project which could be NSIPs. The list included generating stations, airport-related development, waste water treatment plants and reservoirs. The Planning Act sets out the thresholds and criteria above, and subject to, which the listed types of development are considered Planning (Business or Commercial Projects) Regulations 2013, is broad and includes office use, sport, leisure and tourism facilities and the winning and working of minerals. For the first time commercial developers were able to directly benefit from compulsory purchase powers for something other than 'traditional' infrastructure.

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Originally published in Property Law Journal (April 2018)

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