This is entry number 115, first published on 22 March 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

Today’s entry reports on the Infrastructure Planning Commission's policy not to give legal advice.

Since 1 October 2009, the new Infrastructure Planning Commission has been giving advice on applications for nationally significant infrastructure projects (NSIPs), and it has been publishing the advice it receives on a log that it updates weekly. From 1 March, applications had to be made to is, although it is not expecting an application until 30 April. When the log first started being published, I remarked that while understanding the IPC's wish to be transparent in its dealings, the publication of advice for all to see might put prospective promoters off from seeking it. They may not wish their projects to be advertised before they are ready, nor their questions that might expose vulnerabilities.

On Friday, the IPC issued its first note on policy, which is here. It essentially says that it cannot give out legal advice, particularly on the question of whether a project is above or below the thresholds that would make it an NSIP. This may or may not be related to the number of times they were asked that very question last week.

The IPC will have to decide whether a project is an NSIP once an application is made to it, but the difference between that decision and pre-application advice is that in the former case it is acting for itself and in the latter it is advising potentail promoters.

The question 'Is my project an NSIP?' could prove an interesting legal question. Robert McCracken QC said as much in his paper to last year's Oxford Planning Conference (which will appear here in about May), but otherwise the issue has not received much attention.

If an applicant thinks its project is an NSIP, it will apply to the IPC, but if it does not and in fact it is, it will not apply to the IPC but constructing it will be a criminal offence. The applicant may apply under the previous regime to a different body such as a local authority or the government, who will then have the task of deciding whether the project is an NSIP thrust upon it. It could run into difficulty if it gets this wrong.

Project promoters may wish to tweak their projects so that they fall above or below the thresholds in the Planning Act, depending on whether they think the new regime will help or hinder them. Somewhere in the project documentation will be a justification that the project is say a 55MW energy project and hence above the threshold, but others may claim it only has a capacity of 45MW. This could prove problematic for unpopular projects close to the relevant threshold, although one thing that nuclear power stations need not worry about as they substantially higher than the threshold.

In a related development, lawyers for the first NSIP expected to come before the IPC are clearly worried that the IPC may think that part of the project is not 'associated development' and hence not able to be bundled in with the same applcation. They have produced a ten-page note that justifies why a proposed Materials Recovery Facility is properly associated with the main energy from waste NSIP. The Act only says that the development must be 'associated', but government guidance says that it must be 'subordinate to and necessary for' the main development.

The IPC understandably does not want to put itself in the position of legal adviser to a potential applicant, but it may be frustrating to promoters not to be told if their application will be accepted until they actually put it in. If you do need confidential legal advice, however, look no further!