This is entry number 286, published on 14 October 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 decision to be made by the Infrastructure Planning Commission.

The Infrastructure Planning Commission (IPC) is the body that since March 2010 has been charged with examining applications for nationally significant infrastructure projects and, since July 2011 deciding energy project applications.  In April 2012, the provisions of the Localism Bill are expected to kick in and merge the IPC into the Planning Inspectorate, who will examine applications, and decision-making will be taken over by the Secretary of State, adding three months to the timetable.

Yesterday, for the first, and on that timetable only, time, the IPC decided an application.  It decided to give permission to Covanta Energy to build a 'resource recovery facility' at Rookery South in Bedfordshire.  This will be able to generate 65MW of electricity, taking it above the 50MW 'nationally significant' threshold.

In terms of timing, the decision was published late yesterday afternoon (13 October), and the application was made on 4 August 2010.  Even though there was a fairly long period between the application being accepted and the promoter publicising the fact, this means that it only took 14 months and 9 days, or 435 days from application to decision, which demonstrates the new regime working effectively.  I hereby declare that that is the last time I will call it the 'new' regime.

The decision letter and final Development Consent Order (DCO) can be found here  The decision lists three undertakings that were concluded between the promoter and other parties, which is not something normally disclosed in a decision letter, although a register of undertakings is often published in relation to projects authorised by Parliament.  The letter is divided into:

  • procedural decisions made during the course of the examination,
  • a description of the application,
  • the legal and policy context,
  • the main matters: findings and conclusions (the bulk of the report), and
  • conclusions.

A few nuggets:

  • 5.8: the proposal does conflict with the development plan but the Overarching Energy National Policy Statement (NPS) overrides this;
  • 5.37: the statement in the Renewable Energy NPS that commercial matters are not likely to be an important matter for IPC decision-making was material in deciding what weight to give to such considerations;
  • 5.58: visual impact was concluded to be a major disbenefit;
  • 5.107: it was concluded that any adverse consequences on air quality and human health could be properly controlled by the Environment Agency;
  • 5.151: the panel was satisfied that the potential for combined heat and power has been fully explored; and
  • 6.26: the panel concluded that the benefits of meeting the urgent need for energy generating plants outweighed the adverse impacts in visual terms and all other matters they considered.

The decision is a significant step in the history of the Planning Act regime, which now has a full application procedure under its belt.

Special Parliamentary Procedure

Unfortunately, there is a significant issue following on from the decision, arising from the fact that 46 out of the 93 plots of land to be compulsorily acquired are owned by statutory utilities or local authorities, and they have made representations about the project.  In such a situation, the Planning Act requires the project to be subject to 'Special Parliamentary Procedure' (SPP) before it can go ahead.

At the top of the development consent order itself, on page 128 of the decision document, are the innocuous-seeming words 'subject to special parliamentary procedure'.  SPP can involve a committee of MPs having to be convened to consider objections to the project, and this could delay it by 6-9 months before it can be implemented, despite the IPC having given it the green light.

It is a pity that this sort of hangover from previous regimes is still included in the Planning Act procedure - this and other 'hangovers' have been pointed out to Ministers and officials for a number of months, but so far in vain.  This issue is likely to affect any project where the promoter is not itself a statutory undertaker or local authority.

There is an opportunity to put this right on Monday, however, when amendments to the Localism Bill are to be considered that would replace this requirement with one where no separate procedure is needed, but instead the acquisition of statutory undertakers' or local authority land is given special regard when a decision is made.

It is to be hoped that the government will now give this some attention, given the obvious embarrassment of the potential for severe delay to the very first application to get through the Planning Act regime.