The Planning Act 2008 consenting regime
Robbie Owen and Angus Walker – Partners
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Infrastructure planning and consenting
What would the perfect infrastructure authorisation regime look like,
balancing national priorities with localism?
09/04/2015
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Infrastructure planning and consenting
What would the perfect infrastructure authorisation regime look like,
balancing national priorities with localism?
?
Speed
Simplicity
Combined consents
Giving objectors a voice
Reducing prospects of legal challenge
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Planning Act 2008
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.)
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Key Features of the new regime
Compulsory
Policy decided in advance
Pre-application consultation; front loaded
Complex application documents
Emphasis on written examination
Fixed timescales
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Localism Act 2011
National Policy Statements approved by Parliament
Abolition of the Infrastructure Planning Commission (IPC) and
transition to PINS (NID)
Secretary of State (SoS) now (once again) the decision-maker for
projects
Small but useful tweaks to the regime:
PINS no longer prohibited from giving merits advice
Acceptance of applications: ‘satisfactory standard’
One stop shopping: further consents can be added to those which can be included
for NSIPs in England
IPC/PINS Advice Notes reissued
Improved ‘opt-in’ power (direction by SoS that project is an NSIP) and within 28
days of request
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Which projects are caught?
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)
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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 strands
Landowners, statutory consultees and local authorities
Local community, in accordance with a ‘statement of community consultation’
(SoCC)
General public
EIA procedures:
Screening and scoping
Preparation 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
Scope of DCO – physical
The NSIP itself
Any ‘associated development’ (AD)
Promotion of alternatives within?
Flexibility in implementation/detailed design?
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 weeks
Preliminary meeting – triggers 6 months’ deadline, sets agenda
Statements of common ground
Written representations
Hearings – open floor, issue specific, compulsory acquisition
Inquisitorial, not adversarial – limited cross-examination
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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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Fixed deadlines: applications now decided
Ipswich Rail Chord
Construction 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 Chord
Construction 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
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Experience of the new regime
Project
Application progress
Maesgwyn power line
Rookery South EfW
Brig y Cwm EfW
Ipswich chord
North Doncaster chord
Kentish Flats windfarm
Brechfa Forest windfarm
Heysham to M6 link road
Hinkley Point nuclear
Preesall gas storage
Able Marine Energy Park
Galloper windfarm
Triton Knoll windfarm
King's Cliffe haz waste
Blyth biomass
Roosecote biomass
M1 Junction 10a
King's Lynn line
Fieldes Lock power stn
North London line
Redditch railway line
Stage
Acceptance
Post-acceptance
Representation
Pre-examination
Examination
Recommendation
Decision
SPP
31/07/10 13/12/10 27/04/11 09/09/11 22/01/12 05/06/12
Date
Further regime reform
‘Light Touch Review’, April 2012
Eric Pickles’ Written Statement, 6 September 2012:
Getting NSIPs underway is a top priority
Government to review potential improvements:
Raising and lowering NSIP thresholds
New categories of NSIPs – business and commercial projects
Including other consents: the ‘one stop shop’
Special Parliamentary Procedure reform
Recently published – Growth and Infrastructure Bill
Reducing SPP
New 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!