The Planning Act 2008 replaces the current multiple and overlapping consent regimes for major infrastructure projects with a new single consent system for all Nationally Signifi cant Infrastructure Projects (NSIPs). The Act received Royal Assent on 26 November 2008 and during the course of 2009 the plans to implement the Act started to emerge. In 2010 the changes start to kick in, but what do you need to know? This introductory article untangles the acronyms to give you the key facts and dates going forward.
How will the new consent regime differ to the current consenting process?
At present, in addition to planning permission major infrastructure projects in the UK require multiple permissions and consents as governed by the relevant statutory regime for the type of project being carried out. Historically this has led to long delays between the start of major projects and their completion as promoters go through the process of obtaining all the consents required for their project.
The Act consolidates these overlapping statutory permissions and consents into one, single consent called Development Consent. By creating this one-stop shop for project promoters it is hoped that NSIPs will be able to progress more quickly without the excessive red tape that has characterised many major infrastructure projects in the UK in the past.
How will applications for Development Consent be decided?
The Planning Act introduces the idea of UK-wide planning policies called National Policy Statements (NPSs) for specif c types of NSIPs. When a promoter of an NSIP applies for Development Consent the decision on whether or not that consent will be granted will be based on the policy set out in the NPS for that type of project.
The seven draft NPSs covering Energy and Ports NSIPs were published in November 2009 for consultation. The consultation period ended on 15 February 2010 for the Ports NPS and on 22 February 2010 for the Energy NPSs. It is anticipated that the f nal Energy NPSs and Ports NPS will be designated in 2010.
Further draft NPSs will be published, consulted on and designated over the next two years: click here to see table.
Who will decide whether to grant Development Consent?
The Act created a new decision making body, the Infrastructure Planning Commission (IPC), to decide applications for NSIPs. The IPC, an independent body, opened its doors on 1 October 2009 and has been providing pre-application advice to promoters of NSIPs since then. The IPC was able to receive the f rst applications for Development Consent for Energy and Transport from 1 March 2010.
Using the relevant NPS as a guide (and depending on how complex the application is), IPC decisions on whether to grant Development Consent will be made either by a panel of commissioners, or by the IPC Council on the basis of a report and recommendation by a single commissioner. Where there is no NPS in place, decisions on NSIP Development Consents will be decided by the relevant Secretary of State on the basis of a report and recommendation from an IPC commissioner.
Which projects will the Act apply to?
The new regime will only apply to those projects that exceed the minimum thresholds in the Act. There are 15 categories of projects in the Act, mainly drawn from the energy sector but also covering major water, aviation and transport projects.
The Act will therefore cover a wide variety of projects from new airports and roads to power stations, but always with the overriding aim of facilitating major infrastructure development in the UK.
What will happen if the Government changes in 2010? I’ve heard the Act will be dead in the water.
It is true that, initially, the Conservatives had threatened to abolish the IPC if they came into power. However, the 2009 Conservative party conference revealed that the blanket rejection of the Act that many expected may have been an exaggeration.
The key changes to the Act under a Conservative Government would seem to be:
- NPSs would need the approval of both Houses of Parliament before being designated; and
- the IPC would be merged with the Planning Inspectorate and make recommendations as to whether Development Consent should be granted to the relevant Secretary of State.
This hybrid of the master policy of the NPS and a more traditional application determination procedure is interesting, and it remains to be seen what impact the advent of a new Government might have on the implementation of the Act. What is clear, however, is that the system of unif ed consent and the simplif cation of the development process has been widely recognised by all parties as a signif cant step forward; the Planning Act 2008 is here to stay.
Energy and Pipelines Partner, Sarah Cassidy, has produced a series of introductory Alerts on the Planning Act 2008; click here if you would like to receive links to these Alerts.
Types of Infrastructure Project covered by the Act:
- Electric lines
- Gas storage
- LNG facility
- Gas reception facility
- Pipelines – gas transporters
- Highway related
- Hazardous waste
- Rail freight interchange
- Dams and reservoirs
- Water resources
- Waste water treatment