The Localism Bill is now making its way through the parliamentary process towards becoming an Act of Parliament, with the House of Lords Report Stage having started on 5 September 2011. The Bill sets out the proposed changes to the infrastructure planning regime under the Planning Act 2008. The key changes of interest are as follows:

As anticipated, the Infrastructure Planning Commission (IPC) is being abolished and replaced by a new (currently unnamed) unit sitting within the Planning Inspectorate. Unlike the IPC, the new unit will not determine Development Consent applications. Instead, it will examine applications and then make a recommendation to the relevant Secretary of State as to whether a Development Consent Order should be granted or refused. This will not have a significant timing impact on promoters as it is intended that the Secretary of State will have only three months within which to make its decision. To assist the transition of current applications, it is proposed that all of the IPC Commissioners will transfer to, and stay with, the new unit until September 2014.

The 2008 Act provides that the Secretary of State has the ability to make a direction that a project falls within the Development Consent Order regime, even if it does not meet the thresholds prescribed by the 2008 Act to qualify as a Nationally Significant Infrastructure Project (NSIP). Rather unhelpfully, such a direction cannot be applied for before an application has been made under one of the other consent regimes replaced by the 2008 Act. The Localism Bill, as drafted, helpfully, not to mention logically, will permit requests to upgrade projects in this way before time and money is spent on an application. This change will be welcomed by those promoters with borderline projects.

The power to enter onto land will be clarified and widened. The original drafting of Section 53 of the 2008 Act permits promoters to apply to the IPC for authority to enter onto land for the purpose of “surveying and taking levels” in connection with an application for Development Consent. Whilst the Section goes on to include boring in order to discover the nature of the subsoil, it does not go any further. After trawling through transcripts of the debates which took place during the passage of the 2008 Act through Parliament, the IPC has revealed that the intention behind the Section had indeed been to include the carrying out of surveys for the purposes of investigating and assessing environmental impacts. Although this has subsequently been the subject of an Advice Note published by the IPC, the ambiguity remains, enabling disgruntled landowners to prevent entry onto their land. The Localism Bill has taken the opportunity to clarify Section 53. If enacted, promoters will be able to apply for authorisation to enter, to survey for the purposes of environmental impact assessments and to take samples.

In addition, promoters will be pleased to learn that two other hurdles in Section 53 will be removed. Section 53 currently provides that authorisation to enter can only be given if it appears likely to the IPC that, firstly, compulsory acquisition may be involved in respect of the relevant land and, secondly, that the promoter had already complied with its Section 42 consultation obligations. The Localism Bill will sensibly remove both these requirements.

Although already dealt with in an IPC Advice Note, the absolute requirements contained in the 2008 Act relating to the form and content of the application documentation will be formally relaxed in the Localism Bill. In future, applications will need only be of a “satisfactory standard”, the significance of which will not be lost on those concerned that their application could otherwise have been thrown out on a spurious technicality.

Comment

After much political rhetoric and a very long wait, we are now tantalisingly close to the Bill becoming law. Although the House of Lords Report Stage is more than its name suggests (in that there could still be further changes) it is envisaged that the Bill will be enacted in November and the infrastructure-related parts of it become law on 1 April 2012.

The main changes to date have not been a surprise; we always knew that the IPC was going to be replaced, but it is good to finally see on paper how the changed regime will work. An enduring criticism of the changes is likely to be the “decentralisation” of the decision-making process from an independent body to elected Ministers, risking a return to the politically motivated consent regime which blocked so many major infrastructure projects before the 2008 Act came into force.

The recommendations on whether to grant or refuse applications for Development Consent Orders will, however, come from the new unit within the Planning Inspectorate, which itself will be bound by the “new” parliamentary approved National Policy Statements. In addition, the unit and the application process will continue to be subject to the same detailed pre-application, compulsory acquisition, examination and time tabling provisions of the 2008 Act. It remains to be seen, therefore, whether this shift of the decision-making power back to Secretaries of State will have any real impact on the majority of applications.