The Infrastructure Act 2015 received Royal Assent on 12 February 2015. It is a wide ranging Act in 8 Parts with 7 Schedules.
I have focused on three areas of the Act:
- NSIP changes,
- Deemed discharge of planning conditions and
- Rights to access land for shale gas and oil extraction and geothermal energy.
Part 5 is entitled “Planning, Land and Buildings” and includes the following:
Nationally Significant Infrastructure Projects (NSIPs) (sections 26-28)
Following the Government’s 2013-14 review of the NSIP regime a number of amendments were proposed to address comments raised in response to the review. These sections bring forward changes to the Planning Act 2008 to enable some of the proposed amendments to go ahead.
Section 26 of the Infrastructure Act 2015 enables the examining authority (whether one appointed person or a panel) to be appointed earlier in the process i.e. once the application for development consent has been accepted.
Section 27 enables 2 members to be appointed as an examining authority panel – filling in the gap between a single person and panels of 3, 4, or 5 persons. In terms of decision making, the view of the lead member of the two person panel is to prevail in the event of a disagreement.
Section 28 introduces amendments to Schedule 6 of the Planning Act 2008 in respect of applications to make material and non-material changes to a DCO. New powers are introduced enabling the Secretary of State to refuse to exercise his power to materially change a DCO if he considers that the development authorised by the change should properly be the subject of an application for a new development consent order.
Deemed Discharge of Planning Conditions (section 29)
Section 29 introduces a new section 74A into the Town and Country Planning Act 1990. Section 74A sets out a procedure for the deemed discharge of planning conditions.
Deemed discharge will apply in relation to conditions imposed on planning permissions in England and the condition itself must require the consent, agreement or approval of the local planning authority (LPA).
A person must apply for the relevant consent, agreement or approval of the LPA and a period must pass without the LPA giving notice of their decision. If that occurs then there is to be deemed discharge. Secondary legislation is awaited from the Government but the Technical Consultation on Planning (July 2014) and the Government’s Response (November 2014) suggested the period for the LPA to respond should be 8 weeks and certain consents would be immune from this process. Section 74A (9) makes it clear that deemed discharge will not apply retrospectively. It will only apply to conditions where the application for planning permission was submitted after the secondary legislation comes into force.
Part 6 is entitled “Energy” and includes “Petroleum and geothermal energy in deep-level land” as well as “Onshore hydraulic fracturing – safeguards”.
Following a Government consultation which began in May 2014, sections 43-48 (inclusive) authorise the use of deep-level land (defined in the Act as being at least 300 metres below surface level) for the exploitation of petroleum (notably shale gas and oil) and for deep geothermal energy. The sections come into force on 12 April 2015.
These new provisions remove the requirement for an operator to have to seek rights of access from every individual landowner whose land is drilled under at a significant depth below the surface or to face a claim for trespass. The rights to use the land may be exercised by, for example, drilling, boring and fracturing. Infrastructure or substances may be left in the deep-level land after the exercise of the right of use.
There is no right to compensation for the individual landowner. Voluntary commitments to notify local communities of drilling works being carried out in deep-level land and to make payments of £20,000 for each lateral (horizontal) well which extends by more than 200 metres have been made by both the petroleum and geothermal industries. Provisions are, however, set out in the Act which enable the Secretary of State to bring forward regulations if voluntary notifications and payments are not made. These sections of the Act (sections 45 and 46) can be repealed by the Secretary of State if the powers under them have not been exercised within 7 years of them coming into force and if the Secretary of State is satisfied that there is no convincing case for retaining the powers.
Section 50 of the Infrastructure Act 2015 (which is not yet in force) introduces new sections 4A and 4B into the Petroleum Act 1998. This section creates 11 pre-conditions that have to be complied with before the Secretary of State will issue a well consent authorising the drilling of a well for onshore hydraulic fracturing. In addition to the 11 pre-conditions, the Secretary of State must also be satisfied that it is appropriate to issue the well consent. Secondary legislation remains to be drafted and a draft must be laid before Parliament on or before 31 July 2015.