This is entry number 312, published on 18 January 2012, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.
Today's entry calls for other consents to be folded into the Planning Act regime.
The Planning Act regime is approaching its second anniversary, and there is now a reasonable amount of experience to draw on. Here is the first of a series of entries with suggestions for how the regime could be improved.
There are six areas where improvements could be made. I deal with the first one here, and will expand upon the others in future blog entries.
- other consents - there are too many of these, and they are insufficiently tied into the infrastructure authorisation process;
- change procedure - there should to be a published procedure for when and how changes can be made to an application;
- consultation database - pre-application consultation would be a lot simpler if a database of consultees was maintained by a central body;
- National Policy Statements - these should be speeded up, and issued even when there are no developments needed or wanted;
- no special Parliamentary procedure - this lengthening of the regime is outdated, repetitious and wasteful;
- simplified wording - the model clauses should be modernised to make them fit for the 21st century.
Other consents
The Planning Act regime was intended to be a 'one stop shop', i.e. all physical development relating to a project and all construction-related consents were to be combined into a single 'development consent order' (DCO). Once consent was given, a promoter should be able to put a spade in the ground, more or less. A one stop shop is not only simpler for promoters, but also for other stakeholders, who can see the application as a whole and don't need to track separate processes with separate consenting bodies. There are operational consents that come later, but here we are talking about consents that enable you to build the thing.
The regime has largely succeeded on the physical development point, although there have been learned debates about complying with guidance that associated development must be both 'necessary for' and 'subordinate to' the main project. That is by the by - my main point is on other consents.
There are a plethora of consents that might be required for an infrastructure project, some commonly-used, some rare and obscure. The Penfold review in 2010 looked at rationalising non-planning consents. The interim review identified 86 different consents that might need to be obtained. These consents have different procedures, are applied for to different bodies, and seldom have a timescale or an incentive for prompt completion.
The Planning Act regime deals with consents in three different ways:
- 11 of them are explicitly able to be combined in a DCO for all projects - they are 'not required' for Planning Act projects. These include planning permission, Electricity Act consent and listed building consent;
- a further 42 consents in England and 78 in Wales can be included in a DCO on a case by case basis, but only if the body that would have given the consent allows you to do this. I call these 'consent for inclusion' consents; and
- any other consents can be disapplied in a DCO under general powers to modify legislation.
The 'not required' consent list is currently fixed, but the Localism Act will allow new consents to be added to it. That is good, but each of the 86 Penfold consents should be considered for inclusion as soon as possible. This won't need primary legislation.
The 'consent for inclusion' consents are worse than useless because you not only have to persuade the original body to give up its consenting powers, which is harder than obtaining the consent from it in the first place, but also persuade the IPC that the consent can be safely avoided via the DCO. (Having said that, I have succeeded on one occasion in getting permission to include a consent on the list in a DCO - hurrah!).
The remaining consents can be disapplied by a DCO, which is effectively the same as saying they can be included in the DCO. The body that would have given consent has to make its case to the IPC if it would rather the consent should be applied for separately, or be subject to conditions.
Meanwhile, the Treasury is expressing increasing concern that secondary consents are taking too long and are not focused on sustainable development. The 2011 National Infrastructure Plan (NIP) states that the government will (page 10):
- ensure the key consenting and advisory agencies have a remit to promote sustainable development as soon as the National Planning Policy Framework is finalised; and
- introduce a 13 week maximum timescale for the majority of non-planning consents.
What's more, the EU is proposing a Europe-wide consenting regime (see earlier blog entry) where each member state must either have a full one stop shop or at least have a combined programme and common deadline for obtaining separate consents. That is surely a good idea.
Some say that the entire list of 'consent for inclusion' consents should be revoked (which doesn't need primary legislation either). All consenting bodies should just have to make their points to the IPC on the 'one stop shop' application, as other statutory consultees and interested parties without consenting powers have to do.
That would certainly streamline things, but if it is too unpalatable to get rid of the list altogether, then the consenting bodies should be more integrated into the process. The NIP proposals help, but are piecemeal and don't go far enough. The consents are still being treated too much in isolation and not in the light of the complete project of which they form part.
For any 'consent for inclusion' consents that are retained, the bodies concerned should publish the circumstances in which they will agree to give up their consenting powers to give more clarity to project promoters. The consents may be separate, but they should become part of a common programme, timetable and have similar criteria for approval. The IPC could include the consents in its timetable for the examining the main application.
Part 1 of a 'charter for reform' is therefore to:
- review the Penfold consents for those that can be included in all DCOs so that this can be done once the relevant part of the Localism Act comes into force;
- review the 'consent for inclusion' consents and remove all or as many as possible from that category; and
- for any that remain, require the consenting bodies to publish their criteria for agreeing to inclusion, and subject them to time limits and criteria for acceptance or refusal related to the main project.
This is an issue that has been taken up by the National Infrastructure Planning Association (NIPA), which should lend it some weight. It chimes with EU proposals, the National Infrastructure Plan and the Red Tape Challenge.
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