Today's entry reports on the first project to be brought within the Planning Act regime after an application for it to be 'upgraded' was granted.
If you thought this entry was about the Thames Tunnel 'supersewer', you'd be wrong, but it is for another tunnel under the Thames.
Background
Before the Localism Act came along, the Planning Act already contained a power for the government to decide to 'upgrade' a project that fell below (or outside) the thresholds in the Planning Act so that it was to use the regime as a 'nationally significant infrastructure project' (NSIP). I try to avoid being all lawyerly and referring to actual sections of the Planning Act but I'll make an exception today for google purposes: these are known as section 35 applications.
In the three and a half years between the passing of the Act and the changes made by the Localism Act, however, no such decision had been made. That may well have been because of the then restriction in the Act about when an upgrade decision could be made. Previously, a project could only be upgraded after the original application(s) had been made. That '(s)' is significant since in the case of the Thames Tunnel, for example, that would have meant making planning applications to 14 different local authorities, before immediately making them redundant once the project was brought into the Planning Act regime.
The Localism Act has swung the pendulum firmly in the other direction. An application may now be made at any time, by anyone, at no cost, and a decision must be made within 28 days. These changes came into force on 1 April this year, and two months later, the first application was made ...
Silvertown Tunnel
On 1 June, the first application was made to upgrade a below-threshold project to come within the regime, for the proposed Silvertown Tunnel in east London. The application was made by the Mayor of London, Boris Johnson, as the promoter of the project is Transport for London (TfL), and it was decided by Secretary of State for Transport Justine Greening on 26 June. The project is a proposed road tunnel under the Thames at Silvertown, to the east of the Blackwall Tunnel and not far from the 'Emirates Air Line' cable car that opens today.
I have seen the decision letter and the decision that the tunnel is an NSIP was made for four reasons, not just 'it's in London, innit':
- London is an engine for economic growth nationally;
- London is expected to grow and congestion to increase if no action is taken;
- congestion at the existing Blackwall Tunnel is having a direct impact on the strategic road network; and
- the Silvertown Tunnel is comparable to other NSIPs such as the Heysham to M6 Link Road.
The TfL press release about the decision can be found here.
Analysis
First, why isn't the Silvertown Tunnel an NSIP already? That is because it won't be part of the strategic road network (SRN) when constructed, and is not being constructed for a purpose connected with a trunk road or motorway. I suppose you could argue that the third reason might satisfy the latter criterion, although it refers to the SRN generally rather than a specific road. Those are the (very simplified) criteria for a new highway to be considered an NSIP. If you want to know more about the highway threshold, I will be discussing it at the free WSP seminar on 4 July.
Secondly, why on earth would someone voluntarily ask that their project came within the Planning Act regime, you might ask. Well, the Planning Act regime does actually have pros as well as cons. The two most significant in this case are the predictability and short duration of the length of time an application takes, and the ability to combine consents, a road tunnel under a river in a busy urban area needing several. As the press release says, bringing the project within the Planning Act regime is likely to reduce the time taken for all the approvals that would have been needed, and increase the likelihood of the tunnel opening on time in 2021.
The perceived cons of the regime are complexity and cost. The first of these is true but can be addressed by relying on good legal advice (I would say that). The second may be true, but once the non-Planning Act route costs of delay, appeals, and multiple consents are taken into account the picture is not so clear cut.
I hope that TfL's decision to make an application, which was then successful, will halp to lodge a suggestion in people's minds that the Planning Act regime might not be that bad after all, and that other applications might follow suit. Indeed if you don't mind if you use the Planning Act regime, but you aren't sure whether your project is an NSIP or not, getting a declaration from the Secretary of State would solve that problem. If you are considering making an application, we can help you put a persuasive case. The more use of the regime there is, the easier and more familiar it will become.
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.
