This is entry number 99, first published on 15 February 2010, of a blog on the implementation of the Planning Act 2008.Click here for a link to the whole blog

Today's entry reports on and analyses some further regulations made under the Act.

Four orders have been laid or made under the Planning Act in addition to the 'third tranche' of regulations and guidance previously reported, and so for the sake of completeness they are noted here - but you may find the analysis interesting too.

The first is the order that says what railways come under the Planning Act, which was consulted upon in December and January. The final order (the Planning Act 2008 (Railways Designation) Order 2010) is the same as the one consulted on (and previously reported): the railways that are included are those for which Network Rail Infrastructure Ltd and Network Rail (CTRL) Ltd are responsible, i.e. the main railway network and High Speed 1. Note that the government has said that High Speed 2 would be authorised using a hybrid Bill in Parliament rather than using the Planning Act. This order means that if it will not be part of Network Rail or Network Rail (CTRL)'s networks, then it wouldn't have come within the scope of the Act in any case.

The second and third are orders that carry forward some exemptions from the need to get authorisation for minor works to overhead lines, accidentally omitted from the Act. Again there was an earlier consultation on this, as reported in this blog entry. The final order has had to be split in two, because part of it needs an affirmative statutory instrument, and part of it needs a negative one (i.e. whether Parliament must positively approve it or just not object to it), but the effect is unchanged from the consultation version. The two SIs are the Overhead Lines (Exempt Installations) Order 2010 and the Overhead Lines (Exempt Installations) (Consequential Provisions) Order 2010.

The last is a commencement order (the Planning Act 2008 (Commencement No.4 and Saving) Order 2010) that brings most of the Planning Act into force on 1 March. This has to be done carefully so that things that have already been applied for or consented do not get caught by the new regime and have to be re-applied for without becoming an offence to build. But has the order been drafted carefully enough?

It has been done deceptively simply - it excludes from the new regime any applications made before 1 March 2010 of the types listed in section 33 of the Act (i.e. planning permission, green belt construction, pipeline authorisation, gas storage authorisation etc.). But is it just the applications that need to be excluded? What about the developments to which they relate?

The Act (section 31) says that consent is required under it for development that forms part of a nationally significant infrastructure project. I'm not sure that the way the commencement order has been drafted disapplies section 31 from the projects it is trying to exclude. For example, if I apply for planning permission for a rail freight interchange, does it stop needing development consent just because the planning application has been excluded from the requirements of the new regime? I'm not so sure. But the saving provision can't just be extended to 'applications and the developments to which they relate', because a development could need more than one application under section 33, and some but not all of them might have been applied for by 1 March. In that case one would assume that a development consent order would still be needed.

Perhaps it would be safer to add at the end of the saving in the commencement order 'nor to any developments for which all the necessary applications under section 33 were made before 1 March 2010'. Does anyone have a view on this?