It now seems certain that the first Development Consent Order (DCO) to be approved, for Covanta Energy's Rookery South energy from waste project, will take longer undergoing special parliamentary procdure (SPP) than it took to be approved in the first place.
SPP is a further process that some orders of various types must undergo in Parliament by virtue of provisions in the Planning Act. The idea is that an order that uses up some sort of special land therefore needs an additional approval before this can happen. Despite the philosophy of streamlining infrastructure applications, SPP was retained in the Planning Act for three things:
- open space land that was not being replaced,
- National Trust land, and, crucially,
- land belonging to local authorities or statutory undertakers (i.e. utilities) where that body had objected to their land being taken.
There is an exception to the last category, namely that if the promoter of the project was a local authority or statutory undertaker themselves, then SPP would not apply in that case.
Particularly now that the government is taking decisions on all applications, this seems to be unnecessary duplication - quadruplication, in fact. To acquire statutory undertakers' land where the undertakers object, requires:
- a decision from the Secretary of State as part of the main application that there is a compelling case in the public interest to take the land (s122);
- a certificate from the Secretary of State that the land can be taken without serious detriment to the undertaking (s127);
- consent from the Secretary of State that the acquisition can be included in the application (s138); and
- SPP (s128).
Thus the same issue is examined four times. While the first three can occur in parallel, at least, the fourth one cannot.
SPP, past and future
Although eight orders (not under the Planning Act) have undergone SPP since 1 January 2000, none of them was opposed and so the process only took a month or two. It is only if they are objected to by means of petitions in Parliament that a committee is convened to examine them, which takes much, much longer. Given the greater participation that the Planning Act involves as a quid pro quo for speed, the chances of orders being opposed is much greater. The last opposed order of any kind was in 1999.
Is Covanta a one-off or will SPP routinely apply? I think it will apply more often than not. Although several ordersin the pipeline will be safely in the statutory undertaker or local authority camp, most energy projects are being promoted by new companies (either completely new, or joint ventures or special purpose vehicles of existing utilities - query whether the latter are safe from SPP or not). The government would no doubt wish projects where 'the market' is expected to provide infrastructure to come forward from companies that are not necessarily existing utilities. Highway developments will often be occasioned by large-scale private development of land, so it will not always be the Highways Agency or a local authority promoting them.
The Rookery South Development Consent Order was applied for on 5 August 2010, and approved by the then Infrastructure Planning Commission (IPC) on 13 October 2011, one year, two months and eight days later. Because Covanta Energy, who will be a statutory undertaker once their Rookery South plant is licensed, is not at present a statutory undertaker, and local authorities had objected to their land being taken, the DCO is having to undergo SPP.
If SPP takes more than one year, two months and eight days, then it will have more than doubled the application time, which takes us to 21 December 2012. Is that likely? Yes - the chairman of the committee that has now been convened to consider petitions against the order has said he expects to make a decision in December. That won't necessarily be the end of it, depending on whether the committee decides the order should go ahead unamended or not - the process could continue into 2013.
Let's just pause a moment to consider what SPP turns on. Since the Rookery South requirement for SPP, the Localism Act has watered it down a little. It is only if the local authority or statutory undertaker objects to its land being taken that triggers SPP - previously it was whether they had made a representation of any kind that had not been withdrawn.
Imagining that Rookery South was under the new process, the only objection to compulsory purchase expressed in the petitions of the local authorities in Parliament is to cables being installed under a single road, Green Lane in Stewartby. Nevertheless, even with the Localism Act changes, that single tiny issue would be enough to trigger SPP and a year's delay. I am reminded of the grand conference in the novel the Name of the Rose where all the Catholic establishment from around the world descended on a monastery to spend weeks considering the sole issue of 'whether Jesus owned his own clothes'.
Why change is needed
As I have said above, SPP involves the reconsideration of issues that have already been considered - thrice, in some cases. Argument one is therefore that it SPP is unnecessary altogether. If special land needs special attention, the government should simply be given a stricter test for including such land when reaching its main decision on the DCO.
Argument two is that it causes unnecessary delay. Delay is hardly the word - it makes a mockery of the streamlined authorisation procedure under the Planning Act. The government's boast that decisions will be taken in little over a year after applications are made is pretty empty if the DCO won't actually be effective for more than twice that length of time.
Argument three (DECC, DfT and Defra please note) is that it discourages new entrants into the market for energy, transport and waste infrastructure because they are at an automatic disadvantage of taking twice as long as existing entrants (if even they are safe). DCLG please note, large commercial developments that need highway infrastructure will be discouraged if the roads connecting them will take twice as long as expected to be authorised. BIS please note, all this threatens growth.
Argument four (DECC please note) is that the UK has EU-imposed renewable energy targets and these are intended to be met by large infrastructure projects, primarily offshore wind. Most of the offshore wind projects in the pipeline are likely to have to undergo SPP and will therefore take twice as long to be authorised.
Argument five (HM Treasury and Infrastructure UK please note) is that the government has committed itself to reforming SPP. On Budget Day in March this year, the government pledged, in its Infrastructure Delivery Update, that 'the Government will remove duplication in the consenting regime for major infrastructure development by bringing forward legislation to adjust the scope of Special Parliamentary Procedure'.
... and it's easy
There are two places where the requisite amendments to the Planning Act could easily be carried out. First, as a new clause 50A of the Enterprise and Regulatory Reform Bill, currently being considered by Parliament. That's just after the provision to merge planning permission and conservation area consent and is in the part dealing with 'reducing legislative burdens', so it fits in well. The second is as a new clause 105A of the draft Energy Bill. That would take a bit longer, since the bill is still in draft and is being consulted upon, but would be another logical home for this provision. I have a custom-made amendment to the first bill available, adapted from the version that NIPA lobbied to go into the Localism Bill, should anyone need one.