The Planning Act 2008 consenting regime

Robbie Owen and Angus Walker – Partners

Infrastructure planning and consenting

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What would the perfect infrastructure authorisation regime look like, balancing national priorities with localism?

Infrastructure planning and consenting

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What would the perfect infrastructure authorisation regime look like, balancing national priorities with localism??

SpeedSimplicity Combined consentsGiving objectors a voiceReducing prospects of legal challenge

Planning Act 2008

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New regime for authorising the largest infrastructure projects – ‘Nationally Significant Infrastructure Projects’ (‘NSIPs’)

National Policy Statements (NPSs)

(Mostly) from 1 March 2010

Planning Inspectorate (PINS)

Development Consent Orders (DCO)

Substitute for old processes (planning permission, compulsory purchase orders, Highways Act 1980 orders, etc.)

Key Features of the new regime

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Compulsory

Policy decided in advance

Pre-application consultation; front loaded

Complex application documents

Emphasis on written examination

Fixed timescales

Localism Act 2011

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National Policy Statements approved by ParliamentAbolition of the Infrastructure Planning Commission (IPC) and transition to PINS (NID)Secretary of State (SoS) now (once again) the decision-maker for projectsSmall but useful tweaks to the regime:

PINS no longer prohibited from giving merits adviceAcceptance of applications: ‘satisfactory standard’One stop shopping: further consents can be added to those which can be included for NSIPs in EnglandIPC/PINS Advice Notes reissuedImproved ‘opt-in’ power (direction by SoS that project is an NSIP) and within 28 days of request

Which projects are caught?

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17 types of project, each with a size threshold:Reservoirs, water transfer (10mcm or 100mcm/year) (not yet in force)Any sort of electricity generation (50MW onshore / 100MW offshore)Electric lines (132kV)Gas storage, LNG, gas reception (43mcm or 4.5mcm/day)Pipelines (40km (gas), 10 miles (other))Roads (various)Railways (no PD rights)Harbours (5m tonnes)Airports (10m passengers)Rail freight (60ha)Waste water treatment (500,000 people) and transfer or storage of waste water (350,000 cubic metres) Hazardous waste (30,000 tonnes / 100,000 tonnes)

Which projects are caught?

Improved ‘opt-in’ power – for projects not within the thresholds

By s.35(1)(d) PA 2008 the SoS can direct the project to be treated as development for which a DCO is needed if the project is within any of the fields of:

Energy, transport, water, waste water, waste; and

The SoS considers that, “the project is of national significance, either by itself or when considered with one or more other projects or proposed projects in the same field”

Promoters can apply for a s.35 direction – one example so far: Silvertown Tunnel in London

How is a NSIP authorised?

By a DCO

Application to SoS, handled by PINS

Three stages to obtaining a DCO:

Pre-application: consultation and EIA procedures

Application preparation and submission

Examination and decision

Pre-application

Complex and onerous

Three strandsLandowners, statutory consultees and local authoritiesLocal community, in accordance with a ‘statement of community consultation’ (SoCC)General public

EIA procedures:Screening and scopingPreparation of ‘preliminary environmental information’

The application

Number of standard application documents, including:

Draft DCO and Explanatory Memorandum

Consultation Report

Environmental Statement

Plans and Sections

Book of Reference

Statement of Reasons and Funding

The NSIP itself

Any ‘associated development’ (AD)

Promotion of alternatives within?

Flexibility in implementation/detailed design?

Scope of DCO – physical

Scope of DCO – legal

Not required: planning permission, listed building consent, ancient monument consent

Not available: Highways Act orders / schemes – s.10, s.14, s.16, s.18, s.106, s.108, s.110 (not available for NSIP)

Certain consents with permission of consenting body (s.150)

Modification and disapplication of legislation (s.120)

Requirements (= planning conditions)

‘Ancillary matters’

Examination and decision

Application acceptance process – 28 days

If accepted, followed by representations period – min. 28-days

Triggers examination process:

Initial consideration of issues by PINS – 6-8 weeksPreliminary meeting – triggers 6 months’ deadline, sets agendaStatements of common groundWritten representationsHearings – open floor, issue specific, compulsory acquisitionInquisitorial, not adversarial – limited cross-examination

Fixed deadlines

Examination must take no more than six months from Preliminary Meeting

PINS have three months to make a recommendation

SoS has three months to make a decision

Deadlines can be extended in exceptional circumstances

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Ipswich Rail ChordConstruction of a new railway link 1.4km long linking the Great Eastern Main and East Suffolk Lines to allow freight trains from Felixstowe more direct and efficient cross-country route to the West Coast Main Line.Timeline: application submitted 29 June 2011, accepted 21 July 2011, preliminary meeting 9 November 2011, Examination stage ended 22 March 2012; PINS recommendation to SoS 12 June 2012; SoS decision 5 September (deadline was 12 September) 2012

North Doncaster Rail ChordConstruction of a 3km twin track railway to take freight traffic off the East Coast Main Line – allowing for greater capacity on ECML for high speed passenger trains and reduces current freight train mileage. Includes a 246m long viaduct across the ECML. Timeline: over two years pre-planning and consultation; application submitted 22 June 2011; accepted 19 July 2011; Preliminary meeting 16 November 2011; Examination stage ended 2 May 2012; PINS recommendation to SoS 31 July 2012, SoS decision 16 October 2012 (deadline was 2 November) 2012

Fixed deadlines: applications now decided

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Experience of the new regimeApplication progress

31/07/10 13/12/10 27/04/11 09/09/11 22/01/12 05/06/12

Redditch railway lineNorth London line

Fieldes Lock power stnKing's Lynn line

M1 Junction 10aRoosecote biomass

Blyth biomassKing's Cliffe haz waste

Triton Knoll windfarmGalloper windfarm

Able Marine Energy ParkPreesall gas storageHinkley Point nuclear

Heysham to M6 link roadBrechfa Forest windfarm

Kentish Flats windfarmNorth Doncaster chord

Ipswich chordBrig y Cwm EfW

Rookery South EfWMaesgwyn power line

Proj

ect

Date

StageAcceptancePost-acceptanceRepresentationPre-examinationExaminationRecommendationDecisionSPP

Further regime reform

‘Light Touch Review’, April 2012

Eric Pickles’ Written Statement, 6 September 2012:Getting NSIPs underway is a top priorityGovernment to review potential improvements:

Raising and lowering NSIP thresholdsNew categories of NSIPs – business and commercial projects Including other consents: the ‘one stop shop’Special Parliamentary Procedure reform

Recently published – Growth and Infrastructure BillReducing SPPNew category of business and commercial projects

National Infrastructure Planning Association (NIPA)

Some conclusions

Policy backdrop

Scope of the regime (thresholds; AD; other consents)

Consultation and engagement

Complexity and prescription

Dealing with design development and changing technology

‘Requirements’ and other consents in the DCO

Mindset and management

5Ps!