This is entry number 33 of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.
Today’s entry is a summary of the provisions of the Planning Act 2008. I first set this out in July, but there have been several developments since then, so this entry gives the latest picture. For more information, you can get hold of our free 16-page brochure on the Act - click here to obtain one. For a complete picture of the new regime, Bircham Dyson Bell has written a book on it, published by Butterworths at the end of July. Click this link for more details.
There are four new abbreviations to get used to when talking about the new regime, which neatly cover the four main new concepts it involves. Everything is geared towards speeding up the authorisation of major infrastructure, mainly in England, some types in Wales and one type in Scotland.
The first abbreviation is ‘NPS’ – National Policy Statement. There are going to be 12 of these, issued by the government in draft starting this autumn, subjected to consultation, and then finalised in turn over the next two or so years. These will set out national policy on a particular area of national infrastructure in a single accessible document, and will state to a greater or lesser degree what infrastructure is needed over the next 15-20 years, sometimes where it should go, sometimes who should build it, and sometimes what it should look like.
The 12 NPSs proposed are to have the following titles: Overarching Energy (i.e. energy of all types, to sit above the other energy NPSs); Nuclear Power; Fossil Fuels; Renewable Energy; Electricity Networks; Gas and Oil Infrastructure; Ports; National Networks (i.e. railways, motorways, trunk roads and rail freight interchanges); Airports; Water Supply; Waste Water and Hazardous Waste. Each of these will be considered in more detail in future blog entries. The first eight are to be issued in 'autumn 2009' - which may well mean October - and the last four in 2010-11.
The point of NPSs is to avoid debates about policy when applications are under consideration – nearly a quarter of the Heathrow Terminal 5 inquiry was taken up with debating whether it was needed, for example. Now, the commissioner will just be able to say ‘It says it is needed in the Airports NPS – when that came out in draft, that was your chance to debate that issue. Next, please!’
The second abbreviation is ‘NSIP’ – Nationally Significant Infrastructure Project. This should not be confused with NPS, but is already being pronounced ‘ensip’, which helps to distinguish it. The new regime will only apply to NSIPs, and the Act sets out, for each type of project, how big it needs to be for it to become an NSIP.
The 16 NSIPs are: generating stations; overhead electric lines; underground gas storage; LNG facilities; gas reception facilities; gas pipelines; other pipelines; highways; airports; harbours; railways; rail freight interchanges; dams/reservoirs; water transfer facilities; waste water treatment plants and hazardous waste facilities.
For each type of project, the Act sets out a threshold above which it becomes an NSIP. For example, a new airport would be an NSIP if it is expected to be able to handle at least 10 million passengers per year, or 10,000 air cargo movements per year. Expansions of existing facilities can also be NSIPs - if an airport is to expand by those same amounts, it would be an NSIP. The brochure I mentioned gives the threshold for all the 16 types, and whether they must be in England, Wales or Scotland.
It will be compulsory for a new NSIP to use the new regime – indeed illegal to build an NSIP without having used it (although a scheme authorised by an Act of Parliament could override this). The new regime will become compulsory for energy and transport NSIPs from 1 March 2010, and for water and waste NSIPs in 2011. It is generally forbidden for a project below the threshold to use it, although the government can decide that a below-threshold project or cluster of projects should be considered an NSIP.
The third abbreviation is ‘IPC’ – Infrastructure Planning Commission. This is the new body that will consider applications for NSIPs, and, controversially, decide them. There are expected to be about 35 Commissioners - six have been appointed to date - and one, or a panel of three or more, will consider the evidence on an application (depending on its complexity). If the relevant NPS is in place, the panel will decide it, but if it was a single Commissioner considering the evidence, a ‘Council’ of Commissioners will then decide the application. If no NPS is in place, the IPC will refer its recommendation to the Secretary of State for decision.
Everything about the IPC is geared to speeding up the process: the IPC deciding applications will cut out the often lengthy wait for the government to make a decision after a planning inspector has reported on an inquiry. The IPC will have (fairly) fixed timescales to work to – around three months from the application being made to sort itself out procedurally, six months to consider evidence and three more months to make a decision. Oral examination is discouraged (although will probably still happen more often than not). Applicants will have to do a great deal of consultation before they even apply to the IPC, in an attempt to front-load the process and identify areas that could be changed before things get too entrenched and expensive.
The Conservatives have said that if they win power in 2010 they will require Parliamentary approval of NPSs and reinstate the approval of the Secretary of State for NSIPs. They will officially abolish the IPC, but it seems that it will remain in all but name. The Lib Dems would abolish the IPC too, but it is not clear if they would leave the regime intact otherwise.
The final abbreviation is 'CIL' or Community Infrastructure Levy. This is a separate innovation to the new regime for authorising NSIPs outlined above. It is designed to formalise a tariff system for developments (consisting of buildings) getting planning permission to contribute to the infrastructure burden that they will create. This won't happen in any local authority area for a good two years, though, because the authority must have completed the first iteration of its local development framework, must then publish a 'charging schedule' for its CIL and hold an examination into it if there are any objections. Only then can it start to charge CIL. Income from CIL is ring-fenced and must be spent on infrastructure.