Since our last update in September 2016 there has been a definite slowing of Development Consent Order (DCO) decisions. In that time there have been decisions on five DCOs. These are for:
- A generating station
- A pipeline
- Two underground gas storage facilities
- A wind farm connection.
The Yorkshire and Humberside carbon capture and storage (CCS) pipeline project was refused, principally because of the government's withdrawal of funding support for CCS in November 2015. This led to the refusal of the main project this pipeline would have served, the White Rose power station.
In terms of ongoing DCOs, there are a further two projects with the relevant Secretary of State for decision, one at recommendation stage and two in various stages of examination.
Notably there are no projects at pre-acceptance or acceptance stage. However despite the slowdown in projects there has been plenty of activity on the legislative and policy side.
The Housing and Planning Act 2016 (the 2016 Act) introduced related housing into the Planning Act 2008 (the 2008 Act), albeit with a geographical or functional link to the principal infrastructure project, and the guidance for this has now been issued. The section authorising related housing came in to effect on 6 April 2017.
The 2016 Act also has some implications for compulsory acquisition. The notice period has been extended to three months for both Notice to Treat and vesting, subject to any change to the relevant legislation that might be sought in the DCO. New processes for material detriment claims also apply. These provisions have now been enacted and will need to be borne in mind when applying compulsory purchase provisions to DCOs.
We have also seen the increase in fees for DCO applications for the first time since the 2008 Act came into force, with a rise of around 50% across all fees.
The long awaited draft Airports National Policy Statement (NPS) was published in February 2017. The final version will provide the primary basis for decision making on DCO applications for a Northwest Runway at Heathrow Airport. The government's decision on 25 October 2016 to endorse the recommendation of the Airports Commission that a new runway should be built at Heathrow Airport was almost immediately challenged by way of judicial review. However the challenge was refused on the basis that the 2008 Act provides no judicial review can be entertained until the NPS has been designated.
Finally the Welsh Developments of National Significance (DNS) is up and running, with a raft of legislation to support the process. Although not related to the 2008 Act, it is worth noting that the Planning (Wales) Act 2015, which came into force on 1 March 2016, established a new process for the consenting of DNS projects in Wales. It includes projects that are outside the 2008 Act, such as energy projects with a generating capacity of between 10MW and 50MW, airports, railway infrastructure, dams and reservoirs, and other types of development requiring planning permission that are considered to be of national significance.
Many of the provisions in the DNS regime, including an obligation to undertake pre-application consultation, applying for connected consents at the same time and procedures for submission, consideration and determination of an application, reflect the framework established by the 2008 Act.
Update on DCO applications
Silvertown Tunnel – the preliminary hearing for this application for a new road tunnel that passes under the River Thames between Silvertown and north Greenwich was held on 11 October 2016.
M20 Junction 10A – the preliminary hearing for this application for a new junction to the south of Ashford was held on 2 December 2016.
Wrexham Energy Centre – the examination for this application for a combined cycle gas turbine power station ended on 19 January 2017. The Examining Authority has until 19 April 2017 to make its recommendation.
Richborough Connection Project – the examination for this application for an electricity transmission connection between Richborough and Canterbury in Kent to connect the proposed new UK to Belgium interconnector ended on 8 December 2016. The Secretary of State has until 8 June 2017 to make his decision.
East Anglia THREE Offshore Wind Farm – the examination for this application for an offshore wind farm off the coast of East Anglia ended on 28 December 2016. The Secretary of State has until 28 June 2017 to make his decision.
Brechfa Forest Connection – this application for works to install an overhead line to connect the consented Brechfa Forest West Wind Farm to an existing overhead line near Llandyfaelog was granted by the Secretary of State on 6 October 2016.
North London Heat and Power Project – this application for works to develop a new energy recovery facility at the Edmonton EcoPark was granted by the Secretary of State on 24 February 2017.
Glyn Rhonwy Pumped Storage – this application for works to convert two disused slate quarries into a pumped storage battery was granted by the Secretary of State on 8 March 2017.
Keuper Gas Storage Project – this application for an underground gas storage facility was granted by the Secretary of State on 15 March 2017.
Yorkshire and Humber CCS Cross Country Pipeline – the examination for this application for works to construct a 75km onshore pipeline ended on 19 May 2015. Following an extension to the decision timeframe, the Secretary of State refused this application on 12 January 2017.
Update on legislation
The Infrastructure Planning Fees (Amendment) Regulations 2017 (the 2017 Regulations) – the Infrastructure Planning (Fees) Regulations 2010 and the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011 make provision for the charging of fees for applications for development consent, and changes to and revocation of DCOs respectively.
The 2017 Regulations amend the earlier Regulations to provide that the level of fees set out in each is generally increased by 50%. The 2017 Regulations also insert a mechanism in each set of Regulations for each fee to be increased annually in line with the consumer prices index, starting from 1 April 2018.
No increase in fees will apply to any application made before 6 April 2017.
Housing and Planning Act 2016 – this Act received Royal Assent on 12 May 2016 and the amendments it introduces with regard to compulsory acquisition came into force on 3 February 2017. These changes are summarised as follows:
- Right to enter and survey land – acquiring authorities will have a new power to survey any land which they intend to acquire an interest or a right over. This will enable acquiring authorities to issue a 14-day notice on landowners and occupiers giving them the right to undertake survey work so as to facilitate the acquisition of the land
- Changes to Notice to Treat and General Vesting Declarations (GVD) – the minimum notice period is to be changed to three months for a Notice of Entry or GVD, from 14 days or 28 days respectively
- Counter-notice to a Notice to Treat – the current regime allows acquiring authorities to take possession up to three years after serving a notice entry, when served at the same time as a notice to treat. The Act will allow occupiers with an interest in the property who have received a notice of entry to serve a counter-notice, specifying a date by which they require the authority to take possession
- Changes to advance payments – the Act brings changes to advance payments, both to the timescales by which payments are to be made and also to the consequences of failing to meet these.
Developments of National Significance (DNS) in Wales – the statutory basis for the DNS process is provided in Part 5 of the Planning (Wales) Act 2015 (the 2015 Act) (which amends the Town and County Planning Act 1990), the Developments of National Significance (Procedure) (Wales) Order 2016 and a number of supporting Regulations.
The purpose of the DNS process is to ensure timely decisions are made on those planning applications that are of the greatest significance to Wales because of their potential benefits and impacts. As with the DCO regime, front-loading and seeking to resolve as many issues as possible prior to submission are essential to the process.
Following a pre-submission notification period, during which the applicant is required to carry out formal pre-application consultation, applications are submitted to the Planning Inspectorate Wales for consideration by an appointed planning inspector. The inspector will consider evidence from the applicant, local communities, the local planning authority and other statutory consultees and interested parties, submitted both in writing and at targeted hearing or inquiry sessions held in public.
Following their consideration of the evidence, the inspector will write a report to the Welsh Ministers, setting out their conclusions and making a recommendation as to whether or not the application should be granted planning permission.
In all cases, the aim is to submit the inspector’s report to the Welsh Ministers within a period of 24 weeks from acceptance of a valid application. This allows the Welsh Ministers sufficient time to consider the inspector’s recommendations and come to a final decision within the 36 weeks set out in the 2015 Act.
Update on policy and guidance
Draft Airports National Policy Statement – the draft NPS was published in February 2017 and provides the primary basis for decision making on DCO applications for a Northwest Runway at Heathrow Airport. It will also be an important and relevant consideration in respect of applications for new runway capacity and other airport infrastructure in London and the South East of England. The draft NPS sets out:
- The Government’s policy on the need for new airport capacity in the South East of England
- The Government’s preferred location and scheme to deliver new capacity
- Particular considerations relevant to a DCO application to which the Airports NPS relates.
The consultation on the draft NPS runs until 25 May 2017.
Planning Act 2008: Guidance on Nationally Significant Infrastructure Projects and Housing (March 2017) – this guidance covers changes to the 2008 Act made by section 160 of the Housing and Planning Act 2016. Key points are as follows:
- No limits are proposed on the types of infrastructure that could include housing, although some will be more suitable than others
- The maximum amount of housing that may be consented will be 500 dwellings
- There may be restrictions on the amount of housing in locations where specific policies in the National Planning Policy Framework (NPPF) indicate that development should be restricted (e.g. land designated as Green Belt, designated heritage assets or flood risk areas)
- The Secretary of State expects any housing consented to include a percentage of affordable housing in accordance with any policies set out in a local plan, to be secured through a section 106 agreement.
- Where housing is being provided on the basis of geographic proximity, developers will need to demonstrate that it is on the same site as, or is next to or close to any part of that infrastructure. In this context, “close to” should be considered to be up to 1 mile away from any part of the infrastructure for which consent is being sought
- The housing element of any application is likely to need examination as a discrete entity, to ensure that any housing proposed is acceptable in planning terms. Reference will be made to policies set out in the NPPF and matters set out in supporting planning guidance.
For further details, please read: Nationally Significant Infrastructure Projects – related housing
Environmental impact assessment
DCLG, Environmental Impact Assessment: Technical consultation (regulations on planning and major infrastructure) (December 2016) – in December 2016, the government invited comments on proposals for implementing a revised Environmental Impact Assessment (EIA) Directive insofar as it applies to the town and country planning system in England and to the nationally significant infrastructure project (NSIP) regime established by the 2008 Act.
The EIA Directive forms part of European law and must be incorporated into UK legislation.
Member States have to transpose the amendments into domestic legislation by 16 May 2017.
The 2014 Directive aims to lighten unnecessary administrative burdens, make it easier to assess potential impacts and help maintain existing environmental safeguards. The changes reflect the growing awareness of ongoing environmental and socio-economic priorities and challenges, including the need to improve resource efficiency, take into account and mitigate for climate change, protect biodiversity and seek to prevent disasters. The principal changes are set out below:
- The addition of a definition of the EIA process
- Changes to the circumstances in which a project may be exempt from the requirements of the Directive
- Introduction of Joint and/or Coordinated procedures for projects which are subject to the Habitats or Wild Birds Directives as well as the EIA Directive
- Changes to the list of environmental factors to be considered as part of the environmental impact assessment process
- Clarification of the options for screening and amendments to the information which is required and the criteria to be applied when screening projects to determine whether the Directive applies
- Amendments to the information to be included in the environmental statement (ES)
- A requirement for ES to be ‘based on’ a scoping opinion, where one is issued
- The use of competent experts
- A requirement to inform the public of projects electronically
- A new article elaborating on information to be given in decision notices and the decision making procedures
- Monitoring significant adverse effects
- A new Article requiring the avoidance of conflicts of interest
- The introduction of penalties for infringements of national provisions.
The consultation on implementing the 2014 Directive closed on 1 February 2017.