This is entry number 270, published on 26 August 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 new Planning Act regulations and Localism Bill timetabling announcements.

The government has published regulations on making changes to Development Consent Orders, and a commencement order that switches on both this and also applications for hazardous waste projects on 1 October.

Meanwhile, the government has decided to start with the housing provisions in the Localism Bill at report stage in the House of Lords, meaning that the infrastructure provisions will be considered last.

Changes to DCOs

Following a consultation a while back in November-December 2010, the government has finally published regulations that govern making changes to Development Consent Orders (DCOs) - the legal instruments that authorise nationally significant infrastructure projects.  Note that these are changes after the original DCO has been made, not during the examination of it, which is arguably a more pressing issue.

There is a mini-procedure for non-material changes to DCOs, and a full-blown procedure for material changes.  The latter basically repeats the procedure for consulting on and examining a DCO in the first place.  There is a slight whiff of 'these are the regulations we wish we'd had originally, with hindsight' about them.  Perhaps when the original application and examination regulations are amended to remove the Infrastructure Planning Commission (IPC) in due course, they will look more like these ones.

There is some advantage to applying for a change to a DCO rather than starting afresh - the IPC can authorise a reduced pre-application consultation, and the list of application documents is somewhat smaller, but there is not much difference otherwise.

Interestingly there is a provision at the end where the regulations must be reviewed within five years and assessed as to whether the same objectives could be achieved with less regulation, a sort of 'sunset' provision.

I am pleased to say that all the suggestions we made in response to the consultation have been taken up, not least in changing the title of the regulations from the inscrutable 'Infrastructure Planning (Miscellaneous Provisions) Regulations' to the more meaningful 'Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations'.  The publication of the regulations is usually accompanied by the government's response to the consultation, but this has not appeared yet.

Switch-on for hazardous waste projects

The Planning Act regime currently applies to three types of waste: energy from waste (i.e. incineration that generates electricity) , waste water (i.e. sewage) and recovery or disposal of hazardous waste.  The recovery or disposal of ordinary, non-hazardous waste that does not generate electricity (i.e. most of it) is not covered by the regime, although it could be extended to do so.

While the first two of these three types have been switched on (i.e. applications above a size threshold have to be made to the IPC) - on 1 March 2010 and 6 April 2011 respectively - the latter has not.  The commencement order issued this week will mean that applications will have to be made to the IPC from 1 October 2011 for:

  • facilities to dispose of at least 100,000 tonnes of hazardous waste per year in landfill or deep storage, or
  • for any other sort of disposal or recovery facility that will handle at least 30,000 tonnes per year, or
  • the extension of an existing facility by either of those quanta.  

To get an idea of the sort of facilities that are covered, the Hazardous Waste National Policy Statement (NPS) is currently out to consultation and a draft can be found here.  There is a list of needed projects on page 12.  Note that the NPS is independent of the switch-on date: whether or not the NPS has come into force by then, applications will still have to be made to the IPC from 1 October.

Localism Bill news

The Localism Bill is nearing the end of its progress through Parliament.  The next stage is the Report Stage in the House of Lords, which although it is so called because the House is having changes made at Committee Stage reported to it, there is effectively once again a detailed consideration of the Bill with line by line amendments being debated and voted upon.

Already, peers have tabled nearly 100 proposed amendments.  These have not yet been consolidated into a single list, but if you would like me to send you one, let me know as I am maintaining one.  Their lordships could have done with the services of a proof reader before they submitted some of their amendments - words new to the English language include "planing", "lebvel", "demostrating", "subterrranean", "notfied" and the evocative "fuctions".

So far, four days have been set down for Report Stage: 5, 7, 12 and 14 September.  At the Committee Stage, Baroness Anelay, a government whip, said that five and a half days were being planned.  Given that the House rises on 15 September and returns on 3 October for the party conferences (although they won't actually have finished by 3 October), the fifth and the fifth-and-a-halfth day will have to be in October.

That much was known already, but what is new is that the government has announced that it will start considering the Bill at clause 132, which is the start of the housing provisions, since they were rather rushed at Committee Stage.  Consideration will proceed until the end of the Bill and then continue from clause 1 to clause 131.

This means that the infrastructure provisions, which are now clauses 116-129, will be virtually the last to be considered, almost certainly not until October, which gives a little time to prepare a final assault on further improving the infrastructure planning and authorisation regime.