This is entry number 25 of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

The government has made the final versions of four sets of regulations relating to making applications for nationally significant infrastructure projects under the new authorisation regime introduced by the Planning Act 2008. They will come into force on 1 October 2009. The regulations cover the following topics (with links to them):

The application form and procedure

These regulations are much the same as the draft version. The list of organisations that must be notified when an application is made is longer, as is the application form. One item that is no longer needed to accompany an application is the full set of pre-application consultation responses, which should save a few trees. New application form items are:

  • how any statutory nuisance that may be caused will be mitigated;
  • a plan showing various heritage sites (which used to have to be set out in the Book of Reference); and
  • 'any other documents considered necessary to support the application'.

The latter item could be referring to the fact that apparently the relevant National Policy Statement (NPS) may specify additional items to include in an application.

When publicising that an application has been accepted by the Infrastructure Planning Commission (IPC), the list of things that must be included has been supplemented by:

  • the IPC's reference number for the application; and
  • the latest date on which documents will be available for inspection (a useful improvement on the current apparently unlimited situation under existing regimes).

Model provisions to be included in a development consent order

This has increased in size substantially, from 38 to 96 pages long. That should be good news, should it not - as it means there is more assistance for drafting development consent orders. In fact, however, the reason for the increase is that the main model provisions are largely unchanged, and what were 'additional' model provisions for railways and harbours now each repeat the whole set of model provisions, adapted for railways and harbours. Presumably it was felt that the particular provisions couldn't just be tacked on but that special considerations ran through all of them.

The provision about 'limits of deviation' (the wiggle room that the promoter has to build the project) that gives physical limits has been replaced by a mention of 'the Order limits' shown on the works plan, but I'm not sure how that is going to deal with vertical limits of deviation. Otherwise all the main provisions are much the same, although a couple of them have moved.

The set of model 'requirements' (i.e. 'conditions' in old language) is virtually unchanged.

How Environmental Impact Assessment is dealt with

There was a certain amount of dismay when these regulations were published in draft, as they set up a parallel process of consulting etc. on assessment of environmental impact (EIA) rather than integrating it into the same process as the main application. Although still separate, the final regulations improve this position somewhat - the publication of the main notice of the application and a separate EIA notice has been combined into a single notice, for example.

An additional power has been added for the Secretary of State to direct that EIA must be carried out. The principle that an applicant cannot decide for itself that its project is not EIA development is continued.

There are more regulations about what happens if an application is considered to be subject to EIA or more EIA after it has been made, and also if further applications have to be made to satisfy requirements that might themselves need EIA. The regulations also include certificates that must be sent to the IPC at various stages.

The two schedules of what could constitute EIA development have been copied wholesale from the EIA Directive, although many of the types of development are unlikely to be included in a nationally significant infrastructure project (NSIP). How many NSIPs are likely to contain a confectionery factory or a ski lift, for example?

How with Appropriate Assessment is dealt with

Finally, the regulations dealing with protected European nature sites have been made. They are similar to the draft version but further changes are made to the Habitats Regulations to deal with marine works and special nature conservation orders.

The government is also bringing further parts of the Planning Act 2008 into force on 1 October:

  • the formal establishment of the Infrastructure Planning Commission (IPC) (although it has been set up informally over the last few months), and
  • the pre-application procedure for making applications to it.

Applications do not have to be made to the IPC yet – that is expected to start on 1 March 2010 – and the IPC do not have to accept applications yet. Technically, applications could be made to the IPC from 1 October, although it doesn't have to do anything with them.