143: overview of the Planning Act 2008 - summary up to date to 24 June 2010

This is entry number 143, first published on 24 June 2010, of a blog on the implementation of the Planning Act 2008. 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 is an up-to-date summary of the provisions of the Planning Act 2008.

This is the fifth summary, which is updated and reissued every two or three months. For more information, you can get hold of our free 16-page brochure on the Act - click here to obtain one. For a complete picture of the new regime, Bircham Dyson Bell has written a book on it, published by Butterworths at the end of July 2009. Click this link for more details.  For up-to-date links to all the relevant Planning Act documents, see this blog entry.

There are four new abbreviations to get used to when talking about the new regime, which neatly cover the four main new concepts it involves. The vast majority of tha Act is geared towards speeding up the authorisation of major infrastructure, mainly in England, some types in Wales and one type in Scotland. The remainder of the Act tweaks the existing planning system and also introduces the Community Infrastructure Levy, more on which later.

National Policy Statements

The first abbreviation is ‘NPS’ – National Policy Statement. There are going to be 12 of these: the first seven were published in draft in November 2009 and the remaining five will be published over the next year or so. These will set out national policy on a particular area of national infrastructure in a single accessible document, and will state to a greater or lesser degree what infrastructure is needed over the next 15-20 years, and set out the impacts of the infrastructure that should be addressed by project promoters when making applications, and the Infrastructure Planning Commission when considering them.

The 12 NPSs proposed are to have the following titles (with links to the seven that have been published already): Overarching Energy (i.e. energy of all types, to sit above the other energy NPSs); Nuclear Power; Fossil Fuels; Renewable Energy; Electricity Networks; Gas and Oil Infrastructure; Ports; National Networks (i.e. railways, motorways, trunk roads and rail freight interchanges); Airports; Water Supply; Waste Water and Hazardous Waste. Consultation on the seven already issued closed and Parliamentary select committees reported on them before the election.  The coalition government will contue with the drafts and they are expected to be finalised ('designated') towards the end of 2010. The only change is that they will be subject to Parliamentary approval.

The point of NPSs is to avoid debates about policy when applications are under consideration – nearly a quarter of the Heathrow Terminal 5 inquiry was taken up with debating whether it was needed, for example. Now, the commissioner will just be able to say ‘It says it is needed in the Airports NPS – when that came out in draft, that was your chance to debate that issue. Next, please!’

Nationally significant infrastructure projects

The second abbreviation is ‘NSIP’ – Nationally Significant Infrastructure Project. This should not be confused with NPS, and is being pronounced ‘ensip’, which helps to distinguish it. The regime only applies to NSIPs, and the Act sets out, for each type of project, how big it needs to be for it to become an NSIP.

The 16 NSIPs are: generating stations; overhead electric lines; underground gas storage; LNG facilities; gas reception facilities; gas pipelines; other pipelines; highways; airports; harbours; railways; rail freight interchanges; dams/reservoirs; water transfer facilities; waste water treatment plants and hazardous waste facilities.

For each type of project, the Act sets out a threshold above which it becomes an NSIP. For example, a new airport would be an NSIP if it is expected to be able to handle at least 10 million passengers per year, or 10,000 air cargo movements per year. Expansions of existing facilities can also be NSIPs - if an airport is to expand by those same amounts, it would be an NSIP. The brochure I mentioned gives the threshold for all the 16 types, and whether they must be in England, Wales or Scotland.

It is now compulsory for applications for the first 12 of the 16 types of NSIP listed above to use the new regime – indeed illegal to build an NSIP without having used it (although a project authorised by an Act of Parliament could override this). The new regime is expected to become compulsory for waste water and waste NSIPs in 2011 and water NSIPs in 2012.

It is generally forbidden for a project below the threshold to use it, although the government can decide that a below-threshold project, a project outside the descriptions in the Act (as long as it is an energy, transport, water, waste water or waste project) or a cluster of projects should be considered an NSIP. The previous government said it was minded to do this in one case: the Thames Tunnel sewage project, but an actual decision cannot be taken until an application is made, expected next year.  On the other hand, the government has said that High Speed 2 will be authorised by a Bill in Parliament and will not use the Planning Act regime.

Infrastructure Planning Commission

The third abbreviation is ‘IPC’ – Infrastructure Planning Commission. This is the new body that will consider applications for NSIPs.  It was also going to decide them, but the coalition government will keep its decision-making powers. The full complement of 39 Commissioners has now been appointed. One commissioner, or a panel of three or more, will consider the evidence on an application (depending on its complexity - only nuclear power station applications are currently likely to have more than one commissioner).  If no NPS is in place, the IPC will refer its recommendation to the Secretary of State for decision, so it will take up to three more months.  Transitional arrangements are expected to continue this recommendation role even when NPSs are designated. 

The coalition government has pledged to abolish the IPC, and the measures to do this will be contained in a Localism Bill, expected to be published at the end of 2010 and enacted in autumn 2011.  The authorisation regime will remain largely unscathed, but the consideration of applications will transfer to a 'Major Infrastructure Unit' of the Planning Inspectorate or DCLG.  In the meantime, and for at least another year, the IPC will continue to examine applications and make recommendations on them.

The IPC maintains a log of advice it gives and projects it is expecting on its website.  To date, it has not received any applications since they had to be made to it on 1 March, but the first application is expected in mid July, for an energy from waste project in Bedfordshire.  Five projects have started their formal pre-application consultation.

Everything about the IPC is geared to speeding up the process. The IPC will have (fairly) fixed timescales to work to – around three months from the application being made to sort itself out procedurally, six months to consider evidence and three more months to make a recommendation. Oral examination is discouraged (although will probably still happen more often than not). Applicants will have to do a great deal of consultation before they even apply to the IPC, in an attempt to front-load the process and identify areas that could be changed before things get too entrenched and expensive.  Although the IPC will no longer make decisions on projects, the government will give itself a deadline to do so since this is often a cause of considerable delay - likely to be three months as for the existing regime when no NPS is in place.

Community Infrastructure Levy

The final abbreviation is 'CIL' or Community Infrastructure Levy. This is a separate innovation to the new regime for authorising NSIPs outlined above. It is designed to formalise a tariff system for developments (consisting of buildings) getting planning permission to contribute to the infrastructure burden that they will create. It is up to each local authority to decide whether to introduce it. It won't happen anywhere for up to a year, if at all, because the authority must have completed the first iteration of its local development framework, must then publish a 'charging schedule' for its CIL and hold an examination into it if there are any objections. Only then can it start to charge CIL. Income from CIL is ring-fenced and must be spent on 'infrastructure' - which for this purpose has a wider meaning than in the rest of the Act.  The regulations introducing CIL are in force, but the coalition government may replace CIL with a different kind of local tariff, which means that local authorities are unlikely to proceed with CIL for the moment.

If you would like any further information on the new regime, please read the blog, or get in touch.

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