This is entry number 259, published on 12 July 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 first judicial review launched against the Infrastructure Planning Commission.

The Infrastructure Planning Commission (IPC) is the body that until April 2012 will examine applications for nationally significant infrastructure projects.  The Planning Act deliberately limits the scope for judicial review of its decisions, but nevertheless the first challenge was launched against one of its decisions recently.

The IPC and judicial review

Judicial review (or JR) is the means by which someone affected by a decision of a government or other public body (or failure to reach a decision) can challenge it on the grounds that it was improperly made.  It is not an appeal, but a challenge that there was a legal error in the decision-making process.

The Planning Act regime limits the scope of JR to a very few situations, and the timing of a challenge is limited to the six weeks after the IPC decides an application in most cases.  The courts don't like being restricted in this way and may well allow challenges at other times, but we shall see.

The restrictions only kick in once an application has been made - before that the Act is silent and challengers fall back on the standard principles of making challenges promptly and within three months of the decision being challenged.

The Act also provides for challenges to be made to National Policy Statements (NPSs) within six weeks of their designation, so it will be interesting to see if any of the six energy NPSs are challenged before 30 August, being six weeks after the expected designation date of 19 July.  I haven't heard any rumours of upcoming challenges, but the chances of no challenges at all to the Nuclear Power NPS in particular would seem to be low.

Now that Parliament (or rather just the Commons) is to approve NPSs, this power is arguably no longer necessary, and amendments have been tabled to the Localism Bill to remove references to JR of NPSs from the Planning Act.

The challenge

The JR that has been launched is about the prospective application to build a new nuclear power station at Hinkley Point in Somerset.  The IPC can grant project promoters powers to enter land for survey purposes in advance of an application being made - a power that is being considerably widened under the Localism Bill - and it is the exercise of this power that is being challenged.

Innovia Cellophane Ltd owns land in Bridgwater that is to be used for temporary accommodation, and the IPC allowed an application by EDF Energy to enter the land to survey it.

I do not know the details of the challenge, but from an article in Planning magazine it appears that the challenge may be on the grounds that 'the construction or extension of dwellings' cannot be part of an application to the IPC, and so it may be alleged that the IPC should not have granted access to land to be used for that purpose.

Indeed, EDF Energy asked the IPC if such accommodation could be in its application back in April, and the IPC's answer appears on its advice log.

If that is the issue, at least this JR will allow it to be decided once and for all before too many applications - and the Hinkley Point one in particular - get to an advanced stage.