This is entry number 282, published on 5 October 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 expiry of transitional arrangements for the Planning Act regime.

In common with other legislation, the Planning Act regime contains some 'transitional provisions', i.e. where it allows steps already taken when the Act came into force to count towards the new regime.  Actually, it only contains two, and one of these expired at the weekend.

The one that has no expiry date is the ability of the government to decide that an old policy document can be treated as a National Policy Statement (NPS) so that it doesn't have to produce a brand new one.  It has not chosen to do this so far, and the opportunity to do so will fade over time. This is because the provision only applies to documents published before 6 April 2009, and it is invalidated by any unanticipated, material changes in the circumstances that led to the original policy document.  The changing landscape in the last 18 months and onwards will make this increasingly likely over time.  The most likely candidate for the use of this power had probably been the Air Transport White Paper, but now there is to be no NPS on airports at all.

The other transitional provision is for promoters and relates to pre-application consultation.  It is quite tightly defined.  Any consultation that took place between 1 October 2007 and 1 October 2009 can be treated as if it had been done under the Act, but only for applications made before 1 October 2011.  Thus as of last Saturday, this provision has now expired.  None of the four applications accepted by the Infrastructure Planning Commission (IPC) relied on the provision, there being a considerable risk that some old consultation wouldn't have complied properly with the Act's exacting requirements, so in fact it has never been used.

More importantly, the Localism Bill contains transitional provisions as well (clause 117). These apply to projects on the day the IPC is abolished, expected to be 6 April 2012.  The clause applies to projects where an application has been made, or the promoter has at least formally informed the IPC about it.  Upon re-examining the provision for the purposes of this blog entry, I can see that it is not quite complete.  Some project promoters may have taken some steps under the Planning Act, and yet the projects do not necessarly fall into the categories that the clause applies to.  The steps might therefore not count - and not be able to count - if the promoter doesn't notify the IPC before the latter is abolished.  I can think of 11 things that could have happened:

  • application to the IPC for a screening opinion
  • issuing of a screening opinion by the IPC
  • application to the IPC for a scoping opinion
  • issuing of a scoping opinion by the IPC
  • consultation of local authorities on the contents of the Statement of Community Consultation (SoCC)
  • responses made by local authorities
  • publication of the SoCC
  • implementation of the SoCC
  • receipt of feedback through SoCC implementation
  • the issuing of public notices about an application under s48 of the Planning Act
  • receipt of responses as a result of the publicity

Especially given the repeated comments from the government that the transition will be 'seamless', this looks like a seam.  I will petition DCLG to see if the Bill can be amended.  About 20 of the projects in the IPC's list are in the position of having taken one of the steps above but have not yet formally notified the IPC of their impending application.