On Wednesday 26 November 2008, Queen Elizabeth II gave her assent to the Planning Act 2008.
For the first time, a single planning and authorisation regime would apply to infrastructure projects across different industry sectors.
The regime was aimed to speed up every aspect of the planning and authorisation process, as follows:
- policy, and need in particular, would be declared in advance to avoid lengthy debates once applications were made;
- pre-application consultation would become compulsory to flush out opposition early, allow changes to be made when the project was less entrenched and (let's be honest) start the clock running later;
- applications would be examined principally in writing, with a limited ability to have hearings rather than inquiries and even more limited ability to conduct cross-examination;
- fixed timetables would be introduced for examining applications and deciding them; and
- the stage of the examining body making a recommendation for ministers to decide would be abolished, and the examining body, an independent Infrastructure Planning Commission (IPC), would take the decisions itself.
Have these ambitions been fulfilled after four years? Read on.
Policy declared in advance
Four years on and only nine of the twelve planned National Policy Statements (NPSs) have appeared, so that improvement is still 'in progress'. Apart from the inter-departmental issues that NPSs have brought to the fore, I think there is a fundamental misunderstanding about what NPSs are. They are not new statements of policy, they are merely a document that expresses existing policy in a convenient format for preparing and examining applications. I asked that very question of the government back on 2 December 2009 and got that (correct) answer, but there still seems to be hesitation in publishing NPSs based on the supposed new policy they would contain. This makes it more difficult to prepare and examine applications - crudely, two-thirds of the applications so far decided have not had an NPS in place (albeit based on a very small sample size).
Pre-application consultation is certainly a feature of making applications under the Planning Act that looms large. But is it effective? Partly. It does alert interested parties to forthcoming applications and give them a chance to influence applications before they are made. I'm not sure that all of them engage as much as they could, though, still preferring to make a detailed response only once an application has been made. Perhaps if guidance said that points made later that could have been made earlier will carry less weight, that would concentrate minds. Also, worries about procedural compliance by applicants potentially overshadow actually paying attention to the responses received.
Written examinations and limited hearings
A huge amount of documentation has indeed been generated during application examination and it is all there for all to see on the Planning Inspectorate (PINS) website. I think the record is held by the Hinkley Point C nuclear power station application, where there are nearly 2,300 documents on the PINS website. A six month application is around 110 working days, and so that represented more than 20 documents to write, and read, per day. This does not make it that easy to find one's way about an examination and document organisation in general could do with improvement.
Every application so far has had hearings, and I don't imagine that will change, but they certainly are less formal than public inquiries. This can have its issues, with little notice of what is discussed and therefore little opportunity to prepare answers (which has advantages and disadvantages). Although there is indeed little formal cross-examination, parties do ask each other questions fairly freely during hearings.
So far no examination has lasted more than the notional maximum of six months (extensions only being allowed in exceptional circumstances). I can't say that no examination has been extended, because the Brig y Cwm energy from waste application examination was, but the application was withdrawn before the original six months had passed so there is still a clean sheet on that front.
The deadline for the Kentish Flats windfarm application recommendation has been extended for two weeks due to a fee dispute, but decision periods have been stuck to so far. I played a small part in shortening these so that if an examination takes less than six months, the recommendation deadline is three months after the examination actually ends, rather than nine months after it began, as the Act was originally drafted.
Removal of ministerial decision stage
Of course this stage has been reinstated with the abolition of the IPC this April, thus extending application times by three months. In the two cases so far decided the government has stuck to the three month timetable it has given itself, which is more of an achievement than you might think.
So in every case, there have been definite improvements, but there could be more, which is probably unsurprising given that everyone is having to get used the new regime and do many things for the first time.
A final comment on the regime is that it is heavy on procedural compliance with plenty of opportunities for mistakes to be made, which risks the effect of taking attention away from the substantive issues surrounding an application. I have heard the Planning Act regime described as 'a game of snakes and ladders without any ladders', and so I leave you with the board on which it might be played.