This is entry number 77, first published on 21 December 2009, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to receive blog updates by email, click here.

This entry summarises the first two guidance notes produced by the Infrastructure Planning Commission.

The Infrastructure Planning Commission (IPC), which starts receiving applications for nationally significant energy and transport projects from 1 March 2010, has issued its first two guidance notes, as it is entitled to do under the Planning Act.

First, it is important to contrast guidance with standards. According to the Act, the former is not mandatory (but must be had regard to), whereas the latter are mandatory. Unfortunately, the second guidance note also contains standards, and it is (a) not obvious from the title that it does and (b) not clear within the document which bits are non-mandatory guidance and which are mandatory standards. It would be clearer if the second note were split into guidance and standards and labelled accordingly.

Guidance Note 1 deals with pre-application consultation. It does contain quite a lot of information that prospective applicants would be advised to read. Here are some examples. The guidance acknowledges that the pre-application regulations do not deal with preliminary environmental information (the draft Environmental Statement at whatever stage it has reached) properly, because although it has to be mentioned in the Statement of Community Consultation (SoCC), there is no obligation to include it in the consultation itself (an amendment to the corresponding guidance is promised). The guidance does suggest that it would be a good idea to include it, to ensure that the consultation is properly meaningful. It goes further and suggests that it be made available to the local authority when the SoCC is consulted upon.

The guidance recommends that the statutory body consultation ends on the same date or as close as possible to the end of the public consultation, but then later suggests that the statutory body consultation could be carried out first, so that changes can be made to the project before the public consultation.

The guidance acknowledges that the SoCC may not be fully comprehensive due to local press requirements (i.e. restricting its length), but that a fuller document could also be made available.

There is a fair amount of helpful advice on what should be included in the SoCC (paragraphs 24-27). The guidance goes as far as suggesting that the SoCC publication and subsequent consultation be delayed until any consultation on the relevant NPS is over to avoid 'consultation fatigue'. For energy projects that would mean waiting until after 22 February 2010, and for ports projects until after 15 February 2010.

Finally, the guidance recommends the production of ‘Statements of Common Ground’ with as many objectors as possible and the local authority in particular. It also recommends that local authorities focus on starting their ‘Local Impact Reports’ as early as possible, before the application is made.

Guidance Note 2 deals with the lengthy application form and contains standards as well as guidance. There is guidance on pagination and paragraph numbering of documents and plans. Three copies of the application suite should be provided on paper and 10 on DVD (do they mean CD, or am I being old-fashioned?).

Details are given about the ‘consultation report’ that the promoter must produce saying what consultation was carried out, who responded and what they did about it. Respondents must be categorised and for each, it must be shown whether the project was changed as a result of their responses or not.

“Applicants are advised to consider engaging a person with the necessary legal expertise to draft their [Development Consent] Order.” Hear, hear! Indeed, here, here. There is quite a lot of information on what should be in a DCO, but your legal expert will deal with all that. The guidance recommends that heads of terms of any development consent obligations (i.e. s106 agreements) are agreed before an application is made to the IPC.

Two application documents can be included as appendices to the Environmental Statement, if there is one, rather than being issued separately: a flood risk assessment and a statement on statutory nuisance.

Finally, appropriate assessment: the IPC will refuse to accept an application if the project will have an effect on one or more European (protected nature) sites and does not have a report accompanying it that enables (a) a formal assessment of whether there is a likely significant effect on the site(s) and (b) the carrying out of appropriate assessment if required.