The Planning Act 2008 amends the existing planning application regime in England and Wales. Its greatest impact will be on large infrastructure projects, the consenting process for which will be dramatically streamlined under new provisions. The 2008 Act is being brought into force incrementally throughout 2009, and statutory instruments providing guidance on the operation of the new regime are currently being finalised. The Department for Communities and Local Government recently published an updated "Implementation Route Map - July 2009" which sets out anticipated timescales for the coming into force of the Act.
What are the key issues likely to arise as the new regime starts to take effect?
Infrastructure Planning Commission
The Act will establish the Infrastructure Planning Commission (IPC) as the body responsible for deciding and administering development consents for proposals, which qualify as Nationally Significant Infrastructure Projects (NSIPs).
The IPC will begin providing advice and guidance on preparing applications under the 2008 Act from 1 October 2009. Although there are reports that several applications have already been prospectively submitted under the new regime, the IPC will only officially start receiving applications from 1 March 2010. Initially, its acceptance of applications will be limited to those for development in the energy and transport sectors. The IPC will deal with development consent applications for waste and hazardous waste proposals from April 2011 and for the water supply sector in April 2012.
The phased implementation of the 2008 Act and operation of the IPC have given rise to concerns about transitional arrangements for developers submitting applications at different stages of the coming into force of the new regime. The Consultation for Pre-Application Consultation and Application Procedures for NSIPs which closed on 19 June this year, clarifies that applications should be made in accordance with the existing Town and Country Planning Act 1990 regime until the new regime under the 2008 Act is "switched on" for the relevant sector. Where an application is made under the existing 1990 Act regime, it will be decided under that regime even if the relevant parts of the 2008 Act come into force before the application is determined.
National Policy Statements
Under the 2008 Act, the Secretary of State is empowered to designate policy statements as National Policy Statements (NPSs) in the context of which applications to the IPC will be determined. The Infrastructure Planning (National Policy Statement Consultation) Regulations 2009 came into force on 22 June 2009 and set out which bodies will need to be consulted in formulating NPSs.
The process for producing an NPS is likely to take six months and will include the laying before Parliament of a draft NPS. The finalised draft NPS will be issued for public consultation, while also being scrutinised by a delegated department or a specially appointed Select Committee.
Eleven NPSs covering a variety of infrastructure sectors are expected to be designated in tranches. Consultation exercises for NPSs for nuclear power, fossil fuel, renewable energy, electricity generation, oil and gas infrastructure, ports and national networks (road and rail) have now been pushed back to Autumn 2009 to allow the emerging UK Low Carbon Transition Plan (including the Government's Renewable Energy Strategy) to be taken into acount in their development. These NPSs are expected to be designated during 2010.
NPSs in respect of waste water and hazardous waste are due to be consulted on in the course of 2010, with a view to designation in 2011.
The aim for the NPS for airports is to consult by 2011 and designate it in late 2011. The NPS for water supply will be consulted on from late 2010 with an aim to designate it in early 2012.
Where an NSIP application is made to the IPC before the relevant NPS has been designated, the IPC will make a recommendation to the Secretary of State on whether or not to grant development consent, rather than take the decision itself. The Secretary of State will then have three months to determine the application. Any draft NPS available at the time of such an application is likely to be taken into account in the IPC's recommendation.
Pre-Application Consultation and Application Procedures for NSIPs
The 2008 Act sets out processes aimed at ensuring that NSIP proposals are properly prepared and consulted on before an application is submitted to the IPC, so allowing for expedited decision-making under the new regime. This consultation related to a number of draft regulations and guidance on procedures for pre-application consultation and application documentation, including transitional provisions for consultations commenced before the IPC is operational and closed on 19 June. A summary of consultation responses will be published by 18 September 2009, with the resulting regulations due to come into force in October 2009.
Examination Procedures for NSIPs
A consultation on the third and final set of regulations under the Act was published in July 2009. It deals with the examination and determination of NSIP development consent applications by the IPC, including factors to be taken into account in the decision making process, the treatment of compulsory acquisitions of land and application fees. This consultation closes on 5 October 2009, with a view to bringing into force the resulting regulations on 1 March 2010.
Wider Legislative Context
Although the effects of the 2008 Act will be felt most acutely by those involved in large infrastructure projects, it also impacts on the existing planning regime, which will continue to apply to development which does not meet the specified thresholds for an NSIP.
Partial Regulatory Impact Assessment
Part 9 of the 2008 Act proposes amendments to general planning law and policy in terms of the Local Development Framework process, climate change, planning applications and appeals. This DCLG Regulatory Impact Assessment relates to those provisions and includes 19 separate impact assessments.
Local Development Orders
On 23 June 2009, Section 188 of the 2008 Act came into force. It amends the 1990 Act and related legislation to remove the requirement for Local Development Orders to be based on policies set out in Local Development Plans or Development Plan Documents.
In addition to the 2008 Act, other legislative developments should be considered for NSIP applications, depending on the nature of the proposals. For example, for a qualifying wind-farm, the new regime under the Energy Act 2004 may apply to electricity transmission issues and the provisions of the emerging Marine and Coastal Access Bill will be relevant to any offshore elements of the project.
The separate regulatory regime in Scotland will also continue to apply to proposals north of the border and is similarly undergoing a period of change. Accordingly, close attention needs to be paid to any trans-boundary issues arising in the context of NSIPs.
A General Election will be held by June 2010, soon after the after the IPC is due to start accepting NSIP applications. The Conservatives and the Liberal Democrats have been highly critical of the 2008 Act, and the Conservative Party Green Paper 2009 even states that it would abort many of the NSIP procedures established under the Act. The outcome of the Election is likely to impact on the future of both the functioning of the IPC, and the manner in which development consent applications for NSIPs are decided.
Access the DCLG's Implementation Route Map – July 2009 on the Communities and Local Government website
For the Infrastructure Planning (National Policy Statement Consultation) Regulations 2009, visit the Office of Public Sector Information website.