The Planning Act 2008 consenting regime

Robbie Owen and Angus Walker – Partners

Infrastructure planning and consenting

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

2 06/05/2020

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 3 06/05/2020

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.) 06/05/2020 4

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 06/05/2020 5

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 6

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) 06/05/2020 7

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

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 15 06/05/2020

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

16 06/05/2020

Experience of the new regime

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

Date Stage

Acceptance Post-acceptance Representation Pre-examination Examination Recommendation Decision SPP

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!