This is entry number 21 of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

Here I set out a possible problem with the new regime, being one of a few that I have encountered when combing through the Planning Act 2008.

The offence of building a project without permission

If you are familiar with the planning system you will know that it is not against the law to build something without planning permission. It is only when the local authority takes enforcement action against you and you fail to abide by it, that you are committing an offence.

The new regime operates in reverse. It is an offence to build a project that needs permission under the Planning Act 2008 without having permission, but it is not an offence to fail to comply with enforcement action taken by the local authority (noting that it is local authorities, rather than the Infrastructure Planning Commission (IPC), that police development consent orders).

It therefore seems that the enforcement part of the regime does not have much to add. Where it may be effective, however, is that it will allow the local authority to demolish an unauthorised project if whoever built it does not do so.

That is something of an aside. The issue that may be a problem is the offence of building a project without permission. It will be fairly obvious if a power company starts to build a nuclear power station without permission (or will it? What about when the first brick is laid?) Some nationally significant infrastructure projects (NSIPs) are much smaller, however, such as a small railway chord or the even more minor-sounding ‘footpath that impacts on a trunk road’ that was bandied about during the passage of the Planning Bill. It is not difficult to imagine one of those being built without the requisite development consent order. Some development could be for many purposes and only becomes an offence if it is being done as part of an NSIP, such as the demolition of a building in a conservation area. It would look the same as any other development from the outside, but would depend upon what was in the minds of those who were carrying it out.

Some nationally significant infrastructure projects (NSIPs) do not need any physical development at all, such as an increase in the permitted use of an airport of at least 10 million passengers a year. The recent relaxation of a restriction on passenger numbers at Stansted is a case in point – the restriction was eased from 25 million to 35 million passengers per year. This would have been an NSIP – just – had it been applied for after 1 March 2010. When would an offence be committed if no permission was sought? When the 25,000,001st passenger entered the airport in any year? Increase in use by only one passenger wouldn’t have been an NSIP, so would it only be when the 35,000,000th passenger arrived?

More generally, where there is a capacity threshold for an NSIP, an organisation applies using the old route for a size increase below the capacity (so far, so good) but then actually allows a greater throughput than the NSIP capacity threshold, presumably an offence has been committed. It would be advisable for below-NSIP-threshold decision makers to place a condition on granting consent that the project cannot be used at a capacity that would exceed the NSIP threshold. It might also be advisable for the IPC to provide 'screening' advice - not just on whether a project needs environmental impact assessment (the usual meaning of 'screening' in planning) but whether it needs development consent at all.

It will be interesting to see how this part of the Planning Act is interpreted come 1 March 2010.