This is entry number 219, published on 1 March 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.
Today's entry reports on the first anniversary of Infrastructure Planning Commission applications (and reasons for their rarity).
Today, the Infrastructure Planning Commission (IPC) has been accepting applications for energy and transport projects for exactly a year. Time to take stock, methinks. Since 1 March 2010, applications for the following types of project in England and in most cases Wales as well, have had to be made to the IPC:
- anything generating more than 50MW of electricity onshore or 100MW offshore;
- electricity pylons carrying at least 132 kilovolts;
- gas reception and storage facilities of at least 43 million cubic metres or 4.5 million throughput per day;
- gas pipelines at least 40km long;
- other pipelines at least 10 miles long;
- motorway and trunk road projects;
- new airports or airport extensions of 10 million passenger a year capacity;
- harbours handling at least 5 million tonnes of cargo a year;
- new railways; and
- rail freight facilities covering at least 60 hectares.
So how many applications for projects in this impressive list are the IPC considering? Just two. No need to look past the first bullet point - they are both for 'resource recovery facilities' that will produce electricity - coming in at 65MW and 77MW respectively. No pylons, gas infrastructure, pipelines, roads, railways, airports or ports.
Kudos to Covanta Energy for being the promoter of both projects and the only company to have had one application successfully accepted for examination by the IPC, never mind two. Commiserations to Western Power Distribution, who made an application for a short length of pylon but the IPC did not accept it. What has happened to all the other applications?
Back in October 2009, I breathlessly announced the first 48 projects the IPC was expecting to receive by March 2011, adding that 'It will be interesting to compare this list with the number and type of applications it does actually receive during the first year of operation.' That much was right, I suppose.
It is true that there are another 50 applications in the pipeline - and one of them actually is for a pipeline. Of those, seven have at least started their formal pre-application consultation and more than 20 more have asked the IPC for a scoping opinion on what environmental impacts they should assess. Their promoters have thus committed money to the application process which is a sign that an application is likely at some point.
Reasons for the lack of applications
Here are my thoughts about why there have been so few applications, set out as reasons and whether they are likely to be addressed.
Reason 1 - promoters are overly optimistic when setting application dates
Independent of the Planning Act regime, and for genuine reasons such as to inject some pace into application preparation, promoters will often aim for an application date that is not in fact able to be achieved. This reason is likely to continue to some extent, although unrealistic expectations about the pre-application stages of a Planning Act application are likely to reduce as time goes by and promoters gain experience of their own, and others', timescales.
Reason 2 - there are external factors delaying applications
Again independent of the regime, the financial crisis and recession have discouraged investment. This has directly caused the suspension of some highway projects from the IPC's list, and has indirectly led to delays in others. Policy changes are causing uncertainty, such as the ongoing 'electricity market reform' proposals and the development of a national planning policy framework.
Not so independent of the regime but independent of individual projects are delays in the production of National Policy Statements (NPSs). If you think the delays in applications are bad, NPS slippage is no better.
In December 2009, the government gave the following dates for NPS publication and 'designation' (and these were already later than previously advertised) - with actual dates now added. Although NPSs do not contain new policy, they certainly assist with the preparation of applications.
To view table click here.
Reason 3 - the new government's changes have created uncertainty
The election of a new government on 6 May 2010 that had vowed to abolish the IPC has made project promoters more nervous about launching an application during a period of flux. In fact many of the fears are unwarranted - although the IPC will indeed be replaced, its replacement will follow almost exactly the same process the IPC follows, except making a decision at the end, which gets passed to the government. The new government wants this transition to be as seamless as possible, although I think it is still somewhat, er, seamy. I and colleagues have been pushing for changes to be made to clause 108 of the Localism Bill, which at the moment says that the government will probably say later what happens to projects that are 'live' at the IPC abolition date of 2012.
Reason 4 - the IPC's policy and restrictions on advice-giving are off-putting
The IPC has a policy of openness, somewhat dictated by Planning Act regulations to publish the advice it gives. The Act also requires it not to advise on the merits of an application. The IPC is proud to adhere to the former policy, as it believes it generates confidence in all parties that the playing field is level (informationally at least, not necessarily financially). The latter requirement gives it some angst as it is difficult to draw the line between advice on merits and not on merits.
The policy of openness may well not change under the transition to the new Major Infrastructure Planning Unit, and this is just something promoters will have to get used to. They can always get their own legal advice, but of course there is the residual worry that the IPC/MIPU may not agree with it (even if it is right!). Experience of the regime and practice of the IPC/MIPU should assist on this point. On the other hand, hidden in the Localism Bill is an amendment that removes the restriction on advising on merits (paragraph 10(3) of Schedule 13, if you must know). Thus from 1 April 2012, there should be a more relaxed attitude as to the scope of advice that can be given.
The more promoters feel they can ask the IPC/MIPU how they're doing as they prepare applications, the better. The thought of the IPC/MIPU refusing to tell them anything in advance - even knowing that they are taking the wrong approach - only to turn down the application when it is made, is understandably paranoia-inducing.
Reason 5 - there is uncertainty about changes to applications
There are some provisions of the Planning Act whose uncertainty is creating nervousness amongst promoters. Here are two examples. First is how much an application can change from the pre-application consultation stage to the application that is made, without having to rerun the pre-application consultation. This is a question of degree, but what is the degree? If an application takes a little more land to improve landscaping, should the pre-application consultation be rerun or not? At the moment applicants are taking a cautious approach - evidenced by further publication of public notices for two of the seven pre-application consultation stage projects I mentioned above.
Second is the extent to which the application that is granted can be different to the application that was made. The less flexibility there is, the more likely a minor objection to an application (that could be dealt with by tweaking it) risks the whole application being turned down.
These are both huge risks for promoters at the moment. They could be resolved to some extent by more explicit drafting in the Planning Act, and with further guidance; again, the use of the regime in practice will begin to show how much flexibility it contains.