Background

The Planning Act infrastructure consenting regime is compulsory for sixteen types of infrastructure, for projects above a certain size threshold in each case.  One type of infrastructure is overhead electric lines (i.e. pylons) and the current (!) threshold is all lines that will carry at least 132 kilovolts, except for very minor works.

In November 2012, the government consulted on introducing a minimum length of 2 kilometres for such projects, to remove the smallest projects from the Planning Act regime.  Removed projects would still require consent, but  under the Electricity Act 1989 rather than the Planning Act 2008.

This week the government has published its response to the consultation and it has laid before Parliament the regulations that will achieve the change.  There are a few changes to the regulations that were consulted upon.

Details of the changes

The consultation response can be found here, the originally-proposed regulations can be found here and the regulations that will actually come into force can be found here.

The 2km minimum length is confirmed (despite some consultees wanting it to be 15km), but the exemption when replacing existing lines with higher voltage lines is tweaked.

The exemption used to be that the replacement line was in the same position as the existing one and used the same supports, but now it can (a) be up to 60m away as long as the old line is removed within a year and (b) can use higher supports as long as they are no more than 10% higher.

Somewhat counterintuitively the requirement that the replacement line be of a higher voltage than the original one for it to be exempt does not apply if the line is in a Site of Special Scientific Interest or a Natura 2000 (protected ecological) site.

Perhaps of greatest significance to all forthcoming projects under the Planning Act are the transitional provisions.  The consultation had led one (well, me) to believe that projects that had taken a formal step short of an application (i.e. seeking a screening or scoping opinion or carrying out some pre-application consultation) and were going to go from above to below the threshold would be able to choose whether to carry on under the Planning Act or not.  This was based on the phrasing of question 8 in the consultation:

Do you think projects which have started out under the Act but not been the subject of an application for development consent under the Act should be allowed to remain governed by it after the changes have taken effect, and, if so, on what basis?

In fact, the government has decided that only projects where an application has actually been made will be able to carry on using the regime even if they fall below the threshold following the changes.  If other promoters wish to carry on with the regime they will have to apply to be (re-)upgraded into it using the facility under section 35 of the Act.

I don't think that is a good idea for threshold changes in general, as it will increase uncertainty, particularly for projects where it is known that the threshold is going to change.  Promoters may have expended considerable time and expense preparing an application and may now have to go over the hurdle of persuading the government that their project is nationally significant if they are allowed continue to use the regime.

In terms of electric lines, according to my records there is only one project that is in this situation (unless any more seek a screening or scoping opinion or carry out pre-application consultation between now and the changes coming into effect), so the effect of the transitional provision in this case is limited, but I hope a different approach is taken for future threshold changes.

Timing

The new regulations were tabled earlier than expected because of the recall of Parliament to hear tributes to Mrs Thatcher.  The regulations must follow the 'affirmative' approval procedure - Parliament must positively approve them rather than just being able to object to them if they are not to be approved by default - ?s?o? they will not come into force until approved by both houses, which the government expects will take six weeks.  This means the changes are likely to take effect in mid-June 2013.

That is the second threshold change so far - the first being an enlargement of the scope of the waste water threshold to encompass projects such as the Thames Tunnel.  The next change will be to highway and railway proejcts, expected to be published next month.