150: a year of the Planning Act blog and some popular misconceptions

This is entry number 150, first published on 21 July 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 notes the first anniversary of the blog and sets out some popular misconceptions about the new regime.

Happy birthday

The Planning Act blog is a year old!  Since July 2009 it has chalked up 150 entries, documenting and analysing every development in the world of major infrastructure authorisation as it happens.  I hope you have found it useful, nay indispensible.

We have seen the rise and fall of the Infrastructure Planning Commission (IPC), the stop-start emergence of National Policy Statements (NPSs), a host of nationally significant infrastructure projects in the pipeline but none yet becoming actual applications, and a change of government that will mean 'seamless' changes to the regime.

The first entry said: 'The next year is likely to see many new developments: the first National Policy Statements will be published [tick], the establishment of the Infrastructure Planning Commission (IPC) will be completed [tick] and its procedures finalised [tick], and the first applications will be made to it [cross].  The prospect of a general election next spring may affect the process, as the Conservatives have said they will keep National Policy Statements [tick] but abolish the IPC [tick] - more on this as it develops.'  Oh well, five out of six ain't bad.

There are now 45 projects on the IPC's list, but in getting on for five months, not one has bitten the bullet and actually made an application yet.  Of the 45, six have at least started the formal pre-application consultation process, several have sought scoping opinions from the IPC on what their environmental statements should contain, and others have published their Statements of Community Consultation.  There is at least a fair amount of activity in the dressing room, then, but the stage is still bare.

Popular misconceptions

Over the year I have picked up five major misapprehensions about the new regime, as follows.

A popular misapprehension, committed more by those not closely involved in the regime, is that applications cannot be made until the relevant National Policy Statement has been finalised.  That is incorrect - in fact since March, energy and transport applications have had to be made to the IPC, even though no NPS has been finalised yet.  Here is an example of the misapprehension, from the Times.

The most frequent mistake made by all parties involved in a project (or even the government, in the case of NPSs) is to miss out some of the local authorities that need to be consulted at various stages.  For most pre-application stages, it is not only the authorities where projects are to be situated that need to be involved, but also their neighbours.  In a two-tier area, the neighbours of the county and district authorities, each at county and district level, can mean a long list of consultees.

The third misapprehension is more a case of the (previous) government's interpretation versus other views.  This is the question of what an NPS contains, and therefore what consultation on it involves, and what the alternatives to it are.  The erstwhile government's view was that NPSs do not - indeed should not - contain new policy, but should merely present existing policy.  Logically, then, consultation on the NPS is therefore just consultation on how the NPS has set out policy rather than consultation on what the policy actually is.  The same goes for alternatives: alternatives to the NPS are either not having one or presenting the policies differently, rather than any suggestion that they could contain different policies.

Next, the concept that the regime is a 'one stop shop' for all the consents you might need is incorrect.  It does reduce the amount of shopping around required, but does not eliminate it.  Two main types of consent cannot be included in an application without further ado.  First, byelaw-making powers and offences cannot be included at all, despite some of the regimes that the new one replaces allowing for this.  Secondly, a list of 42 consents in England and Wales and 36 in Wales cannot be included in an application without the permission of the body that would have given the consent otherwise.  (Most obscure consent: consent under the Coity Wallia Commons Act 1976)  Asking such bodies for consent to avoid asking for their consent, and then persuading the IPC to give consent, is mor onerous than just asking for the consent separately in the first place.

Finally, news of the demise of the IPC has been greatly exaggerated.  Despite announcements of its abolition earlier this month, we can expect to see it in existence for nearly two more years, until April 2012.  Even after its role has been taken over at that point by the so-called Major Infrastructure Planning Unit, the process set out in the Planning Act will live on largely unscathed. 

That is a relief, because it means that there will be plenty more to blog about, and the contents of the blog to date are still of interest (I hope) and relevance.

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