The Planning Act 2008 consenting regime Robbie Owen and Angus Walker – Partners

1. The Planning Act 2008 consenting regime Robbie Owen and Angus Walker – Partners

2. Infrastructure planning and consenting 2 • What would the perfect infrastructure authorisation regime look like, balancing national priorities with localism? 31/07/2014

3. Infrastructure planning and consenting 3 • What would the perfect infrastructure authorisation regime look like, balancing national priorities with localism? • ? • Speed • Simplicity • Combined consents • Giving objectors a voice • Reducing prospects of legal challenge 31/07/2014

4. Planning Act 2008 • New regime for authorising the largest infrastructure projects – ‘Nationally Significant Infrastructure Projects’ (‘NSIPs’) • National Policy Statements (NPSs) • (Mostly) from 1 March 2010 • Planning Inspectorate (PINS) • Development Consent Orders (DCO) • Substitute for old processes (planning permission, compulsory purchase orders, Highways Act 1980 orders, etc.)

5. Key Features of the new regime 5 • Compulsory • Policy decided in advance • Pre-application consultation; front loaded • Complex application documents • Emphasis on written examination • Fixed timescales 31/07/2014

6. Localism Act 2011 6 • National Policy Statements approved by Parliament • Abolition of the Infrastructure Planning Commission (IPC) and transition to PINS (NID) • Secretary of State (SoS) now (once again) the decision-maker for projects • Small but useful tweaks to the regime: • PINS no longer prohibited from giving merits advice • Acceptance of applications: ‘satisfactory standard’ • One stop shopping: further consents can be added to those which can be included for NSIPs in England • IPC/PINS Advice Notes reissued • Improved ‘opt-in’ power (direction by SoS that project is an NSIP) and within 28 days of request

7. Which projects are caught? • 17 types of project, each with a size threshold: • Reservoirs, water transfer (10mcm or 100mcm/year) (not yet in force) • Any sort of electricity generation (50MW onshore / 100MW offshore) • Electric lines (132kV) • Gas storage, LNG, gas reception (43mcm or 4.5mcm/day) • Pipelines (40km (gas), 10 miles (other)) • Roads (various) • Railways (no PD rights) • Harbours (5m tonnes) • Airports (10m passengers) • Rail freight (60ha) • Waste water treatment (500,000 people) and transfer or storage of waste water (350,000 cubic metres) • Hazardous waste (30,000 tonnes / 100,000 tonnes)

8. Which projects are caught? • Improved ‘opt-in’ power – for projects not within the thresholds • By s.35(1)(d) PA 2008 the SoS can direct the project to be treated as development for which a DCO is needed if the project is within any of the fields of: • Energy, transport, water, waste water, waste; and • The SoS considers that, “the project is of national significance, either by itself or when considered with one or more other projects or proposed projects in the same field” • Promoters can apply for a s.35 direction – one example so far: Silvertown Tunnel in London

9. How is a NSIP authorised? By a DCO Application to SoS, handled by PINS Three stages to obtaining a DCO: Pre-application: consultation and EIA procedures Application preparation and submission Examination and decision

10. Pre-application • Complex and onerous • Three strands • Landowners, statutory consultees and local authorities • Local community, in accordance with a ‘statement of community consultation’ (SoCC) • General public • EIA procedures: • Screening and scoping • Preparation of ‘preliminary environmental information’

11. The application • Number of standard application documents, including: • Draft DCO and Explanatory Memorandum • Consultation Report • Environmental Statement • Plans and Sections • Book of Reference • Statement of Reasons and Funding

12. The NSIP itself Any ‘associated development’ (AD) Promotion of alternatives within? Flexibility in implementation/detailed design? Scope of DCO – physical

13. Scope of DCO – legal Not required: planning permission, listed building consent, ancient monument consent Not available: Highways Act orders / schemes – s.10, s.14, s.16, s.18, s.106, s.108, s.110 (not available for NSIP) Certain consents with permission of consenting body (s.150) Modification and disapplication of legislation (s.120) Requirements (= planning conditions) ‘Ancillary matters’

14. Examination and decision Application acceptance process – 28 days If accepted, followed by representations period – min. 28-days Triggers examination process: Initial consideration of issues by PINS – 6-8 weeks Preliminary meeting – triggers 6 months’ deadline, sets agenda Statements of common ground Written representations Hearings – open floor, issue specific, compulsory acquisition Inquisitorial, not adversarial – limited cross-examination

15. Fixed deadlines 15 • Examination must take no more than six months from Preliminary Meeting • PINS have three months to make a recommendation • SoS has three months to make a decision • Deadlines can be extended in exceptional circumstances 31/07/2014

16. Fixed deadlines: applications now decided 16 • Ipswich Rail Chord • Construction of a new railway link 1.4km long linking the Great Eastern Main and East Suffolk Lines to allow freight trains from Felixstowe more direct and efficient cross-country route to the West Coast Main Line. • Timeline: application submitted 29June 2011, accepted 21July 2011, preliminary meeting 9November 2011, Examination stage ended 22 March 2012; PINS recommendation to SoS 12 June 2012; SoS decision 5 September (deadline was 12 September) 2012 • North Doncaster Rail Chord • Construction of a 3km twin track railway to take freight traffic off the East Coast Main Line – allowing for greater capacity on ECML for high speed passenger trains and reduces current freight train mileage. Includes a 246m long viaduct across the ECML. • Timeline: over two years pre-planning and consultation; application submitted 22June 2011; accepted 19July 2011; Preliminary meeting 16 November 2011; Examination stage ended 2 May 2012; PINS recommendation to SoS 31 July 2012, SoS decision 16 October 2012 (deadline was 2 November) 2012 31/07/2014

17. Experience of the new regime

18. Further regime reform • ‘Light Touch Review’, April 2012 • Eric Pickles’ Written Statement, 6 September 2012: • Getting NSIPs underway is a top priority • Government to review potential improvements: • Raising and lowering NSIP thresholds • New categories of NSIPs – business and commercial projects • Including other consents: the ‘one stop shop’ • Special Parliamentary Procedure reform • Recently published – Growth and Infrastructure Bill • Reducing SPP • New category of business and commercial projects • National Infrastructure Planning Association (NIPA)

19. Some conclusions • Policy backdrop • Scope of the regime (thresholds; AD; other consents) • Consultation and engagement • Complexity and prescription • Dealing with design development and changing technology • ‘Requirements’ and other consents in the DCO • Mindset and management • 5Ps!