Angus Walker's Planning Blog 90 - 71

The Planning Act 2008 is one of the most important pieces of legislation affecting major infrastructure projects for many years. The same new procedure will be available for the third runway at Heathrow Airport, new nuclear power stations and windfarms being planned around the English and Welsh coast, the next high speed railway north from London, and many more high-profile projects.

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90: The Times attacks the Infrastructure Planning Commission based on a misunderstanding

29th January 2010

Today's entry looks at an attack on the Infrastructure Planning Commission by the Times newspaper.

The main story is here, and then there is a humour piece based on it here, encouraging the usual Private Eye 'On the Message Boards'-style comments about 'broken Britain'. The only one that is right (so far), is Robbie Owen's comment on the first of the articles.

The Infrastructure Planning Commission (IPC) was launched in an advisory capacity in October 2009 and applications for nationally significant infrastructure projects will have to be made to it from 1 March. I have started many blog posts with that sentence (for those who come across the post in isolation), and it is still true.

The IPC will decide applications once the relevant National Policy Statement (NPS) is finalised, but even before then it will be compulsory to make applications to it from 1 March. The only difference is that without the NPS, the IPC will report to the Secretary of State, who will make the decision on the application, and with the NPS, the IPC will make the decision itself. It is true that publication of the first NPSs was delayed, but tthe date that the IPC starts up is independent of this, and in fact last year it was brought forward from 1 April to 1 March.

The Times story is based on the premise that applications cannot be made to the IPC at all until the relevant NPS has been finalised. That is wrong and always has been, ever since the Planning Act was passed in November 2008.

The second point that the Times makes is that if the Conservatives win the election that must take place by 3 June and will probably take place on 6 May, it will scrap the IPC and so it will never do anything in its short existence. If it got the start of the IPC wrong, it is probably wrong about the end of it, too.

The Conservatives are regretting their 2008 stance that they would scrap the IPC, and have been rowing back on this ever since. We will hear the latest position next Wednesday, when Bob Neill MP, shadow planning minister attends one of our popular 'business breakfasts' (sorry, attendance at that one is full), but it will be something along the lines of 'We like NPSs but will introduce a Parliamentary vote on them. We like the consent regime under the Planning Act, but we will keep the Secretary of State as the decision-maker, even when the NPSs have been finalised. We will scrap the IPC, *cough*but actually we will just call it part of the Planning Inspectorate with the same staff and commissioners*cough*".

If Bob says anything different on Wednesday, you'll be the second to know (after the people who were actually there). The Tories 'autumn 2009' planning 'green paper' is still awaited (so they're not so hot on punctuality, either), and this will finally put it down in black and green.

Incidentally, thank you for your patience while our website went through an upgrade. The blog entry page titles are now meaningful words rather than numbers: the links within entries to each other are in the process of being changed so that they work. Otherwise, it is business as usual in the four-week run-up to the IPC's birth..

89: Government slips up on Nuclear NPS consultation?

21st January 2010

Today's entry looks at the apparent failure of the government to follow the Planning Act consultation requirements for the Nuclear National Policy Statement.

On 9 November 2009, seven National Policy Statements (NPSs) were published in draft. The Planning Act sets out certain steps that must be undertaken so that they are properly scrutinised by Parliament, publicised and consulted upon. If an NPS names sites that are suitable or potentially suitable for development, then additional steps must be taken.

The draft Nuclear Power NPS (EN-6) is the only one of the seven that names particular sites - it names ten of the 11 sites that were nominated by nuclear power companies earlier in 2009 (the 11th being Dungeness in Kent).

The additional steps that must be taken are that the proposal to include each site in the NPS must be publicised in the local area, and the government must consult the local authorities whose areas contain the sites - and their neighbours - about how to publicise the proposal. It is the 'and their neighbours' bit that is the problem. Regular readers of this blog will know that including neighbouring authorities can make the total an order of magnitude larger. The ten sites in question are contained in 13 counties and districts, but when you include the neighbours, the number rises to 108 consultees.

Prompted by the wider local authority duties being spelt out in this blog, Planning Magazine sent a request under the Freedom of Information Act to the government to ask what local authorities it did consult for this purpose. The answer is that they consulted the 13 'host' authorities, four others nearby and (apart from a further five relating to Dungeness) that was it. The other 87 councils were not consulted.

In their defence the government have since referred to a circular letter they sent to all local authorities earlier in 2009 offering to keep them updated on nuclear siting if asked. This seems to me to be too general to count, and asking authorities to opt in is not the same as consulting them. What's more, the letter does not actually refer to the National Policy Statement.

It may seem fairly minor that a 'consultation about consultation' was not carried out properly. Maybe so, but it is worth pointing out that once the NPS has been finalised, when the application for the power station is made it will not be possible to object to the choice of site. This is therefore the only official local consultation on whether there should be a new nuclear power station in each area. As a supporter of the new Planning Act regime, it would be frustrating if it turns out that there has been an error in implementing it.

Although this may delay the designation of the Nuclear NPS, it will not necessarily delay applications for nuclear power stations, which must still be made to the new Infrastructure Planning Commission (IPC) from 1 March this year, whether or not the NPS is in force.

This was a blog exclusive until 22 January, when Planning published the result of its investigations! Here is a link to the online version of the article.

88: Parliamentary hearings into National Policy Statements under way

20th January 2010

Today's entry reports on the hearings that are being held in Parliament on the seven National Policy Statements.

Six National Policy Statements (NPSs) on energy and one on parts were issued for consultation on 9 November, and once finalised ('designated') will be used by the new Infrastructure Planning Commission (IPC) to decide applications for nationally significant energy and transport projects.

A previous blog entry set out the timetable for the Parliamentary hearings into the draft NPSs by two select committees. The hearings kicked off on 6 January at the Energy and Climate Change (ECC) Select Committee of the House of Commons. Links to the transcripts of the hearings and the televised versions are given below. The members of the committee are Elliot Morley, Dave Anderson, Colin Challen, Judy Mallaber, John Robertson, Paddy Tipping, Des Turner and Alan Whitehead (Lab), Nadine Dorries, Charles Hendry, Julie Kirkbride and Anne Main (Con), Robert Smith (Lib Dem) and Mike Weir (SNP).

The bad weather meant that Planning Aid and the Royal Town Planning Institute (RTPI) didn't make it so Hugh Ellis of the Town and Country Planning Association (TCPA) (and also adviser to Friends of the Earth) had the stand to himself for the first hour. His two main points were that the consultation was inadequate and that the declaration that all forms of energy generation were equally necessary was weak. He singled out footnote number 11 on page 22 of the Overarching Energy NPS (EN-1) as declaring that it should be left to the private sector to determine the energy mix for the UK.

After he had finished, Graham Bocking of the Royal Institute of Chartered Surveyors (RICS) and Richard Coakley of the Institute of Civil Engineers (ICE) took the stand. They too supported the idea of the energy mix being in a hierarchy, with some types (i.e. renewables) more preferred than others (i.e. fossil fuels). Richard Coakley said that not enough was in the NPSs about decarbonising the two main non-electrical sources of energy: transport and heating. He also made the point that the origin of the biofuel to be used should be a factor in deciding a biofuel plant application, given that some of it could be potentially harmfully grown and transported.

Mike Weir MP expressed concern that the IPC might approve, say, a nuclear power station, but then a planning application for a road leading to it could get blocked by the local authority, meaning that the power station could not go ahead. As he represents a Scottish constituency, where the Planning Act barely applies, he can be forgiven for not realising that one of the benefits of the Act is that, in England at least, 'associated development' such as roads can be included in the main application for the IPC to determine.

On Wednesday 13 January, the ECC Committee had its second session and the Transport Committee had its first at the same time. The transcript for the former is not yet available on the Parliament website, but here is a report of the latter. The members of the Transport Committee are Louise Ellman, David Clelland, Eric Martlew, Angela C. Smith, Peter Soulsby and Graham Stringer (Lab),
Philip Hollobone, Mark Pritchard and David Wilshire (Con), John Leech (Lib Dem) and Jeffrey Donaldson (DUP).

Eight witnesses appeared before the committee in three batches. First, Bill Newman appeared for the TCPA, James Trimmer for the RICS and Morag Ellis QC for the Planning and Environmental Bar Association (PEBA). Then Cllr Richard Kemp appeared for the Local Government Association (LGA) and Alan Welby for Regional Development Agencies. Finally, Ginny Clarke appeared for the Highways Agency, Janet Goodland for Network Rail and Mark Rowbotham for the Chartered Institute of Logistics and Transport (CILT).

The Transport submissions were less critical of the NPS - but three points came through. The Ports NPS would benefit from being considered in conjunction with the National Networks NPS, which will deal with road and rail and has been delayed until this spring. If that is horizontal integration, the second issue was vertical integration - the NPS should link better (or at all, some would say) with regional and local planning policy. Finally, the consideration by the IPC of the carbon effects of projects was thought to be insufficiently covered. A bit like the hierarchy of energy generation types that some would like to see, transport links to ports should also be in a hierarchy of preference rather than just considered equally.

Graham Stringer MP asked if Dibden Bay, the proposed container port near Southampton that was refused permission in 2004, would have been given permission under the new regime. To me that is not the test of the new regime, it is whether it would have been clear in advance that it would not have been given permission in the form submitted - the NPS should give more certainty rather than more chance of success. In my view the NPS does not yet do that - the main issue that Dibden lost on was that the need for the port was not considered sufficient to override the harm to protected natural habitats that it would have caused. The way all the NPSs express need is the key to their success and the general consensus is that it is not quite clear, or backed up wtih evidence, enough.

Angela Smith MP asked if the NPS would help with the Severn Barrage. I can answer for her - that is not within the scope of the Ports NPS but the Renewable Energy NPS. It is presently not covered even in that, but will be added to it if the project appears to be getting off the ground.

The committee seemed to want the witnesses to say that the Ports NPS should be more location specific, and in particular should try to shift port capacity northwards, but most of them would not be drawn on that point.

That's long enough an entry for just two sessions of NPS consideration, but I hope you get a flavour of it.

Links to transcripts and televised coverage:

ECC Committee first sitting 6 January - transcript - broadcast

ECC Committee second sitting 13 January a.m. - transcript not yet available - broadcast

ECC Committee third sitting 13 January p.m. - transcript not yet available - broadcast

ECC Committee fourth sitting 20 January a.m. - transcript not yet available - broadcast

ECC Committee fifth sitting 20 January p.m. - transcript not yet available - broadcast

Transport Committee first sitting 13 January - transcript - broadcast

Transport Committee second sitting 20 January - transcript not yet available - broadcast

87: Thames Tideway Tunnel to be upgraded to nationally significant status?

18th January 2010

Today's entry looks at the suggestion that the proposed Thames Tideway Tunnel project will be decided under the Planning Act.

Thames Water, responsible for water and sewerage in the capital, is proposing to reduce the number of sewage outflows into the Thames by creating a new sewer running parallel to and beneath the river. It will be about 32km long and will run from a point yet to be decided in west London to Beckton in east London. Thames Water's web page about the project is here.

On the face of it, this is not a project that falls within any of the sixteen categories of 'nationally significant infrastructure project' defined in the Planning Act 2008 that would be referred to the new Infrastructure Planning Commission (IPC) for consideration, and if a National Policy Statement (NPS) is in place, decision.

The nearest type of project that is covered is a 'waste water treatment plant' that is capable of treating the, ahem, output from more than 500,000 people (or an extension to an existing plant of that size). Given that this project is a tunnel rather than a treatment plant, it is not covered.

The councils along the Thames believe, however, that the government will use its powers under the Act for the first time to 'upgrade' this project to come within it. The government can do this if it thinks that a project in one of the fields of energy, transport, water, waste water (check) or waste is not covered by the Act thresholds but is of national significance. Since people in London think that everything that happens there is of national significance, that should be a fairly easy hurdle. Seriously, though, the government may not be too gung ho in upgrading projects, as it will look as though they got the project types or thresholds wrong, but this project could be one-off enough to be an exception.

Some of the councils along the Thames are not very happy about this, however, as the project would have consisted of a series of planning applications to them, plus some other consents. Although if they turned them down, there would likely be a planning appeal, which would not be too different from an IPC application. Here is a story from Hammersmith and Fulham's website: Kensington and Chelsea are reportedly unhappy too, according to Planning magazine.

Fears that the IPC will decide the application may be unfounded, however. Either the proposed Waste Water NPS will not cover it (why should it? it is not a project normally covered by the Act), or if it does, it is not expected to come into force until next year (2011). Unless it should ever be covered by a finalised NPS, then the application goes back to the government for decision once the IPC has reported on the evidence. Thames Water say that construction is due to begin in 2012.

It is also wrong to say, in legal terms at least, that the local authorities' views will be ignored. The only document that the Act specifically requires the IPC or the government to take into account when reaching a decision is a 'Local Impact Report' produced by any local authority whose area contains the project or any of their neighbours. Thus it must be taken into account, although of course the councils' concern is that it will be 'had regard to' but not followed.

This issue does raise the interesting prospect that in other situations the government might upgrade a project that would eventually have gone before the IPC, but before it was due to do so.

86: Report of the Ports NPS consultation meeting in London

14th January 2010

Today's entry reports on the consultation meeting held on the Ports National Policy Statement in London today.

The Ports National Policy Statement (NPS) was issued in draft on 9 November and is being consulted upon until 15 February, although if you want your comments to be considered by the Treasury Select Committee, they should be submitted by tomorrow, 15 January. Once finalised ('designated'), the NPS will be used by the new Infrastructure Planning Commission (IPC) to decide applications for nationally significant port projects.

Today's was the third and last public consultation meeting that has been held on the NPS, the other two having been in Cardiff and Leeds, and I went along.

It wasn't quite as slick as the energy NPSs consultation meeting last month, the ratio of talking to listening was rather high, and I don't think that there were any 'members of the public' present, but the level of discussion was pretty focused and sophisticated. Later, there were 'break out groups' that considered different issues in more detail, which was a good idea, although you couldn't choose which topic to discuss. Slightly oddly, the meeting was held under the Chatham House rule (i.e. contributions can be referred to but not attributed), which was somewhat surprising for a public consultation meeting. Free copies of the NPS itself were available, although not until the mid-morning break. The energy NPS lunch was better!

As at the energy NPS consultation, and volunteered this time rather than in response to one of my questions, it was declared that ports policy is settled, and this consultation is not on the policy itself, but just on how it should be presented in the NPS.

I have previously written about whether the various thresholds for different types of projects to be considered nationally significant are too high or too low. One speaker said that the one for ports (an annual capacity of at least 500,000 twenty-foot containers, 250,000 lorries (ro-ro) or 5 million tonnes of loose material (bulk)) was 'ludicrously high' and that therefore the NPS was of more interest to the new Marine Management Organisation, which would be deciding sub-threshold projects from April, than the IPC.

I found the presentation by Andrew Dodd of the RSPB the most interesting (and with the best slides - is that a coincidence?). He said (and I have his permission to say this) that the RSPB has serious concerns about the legality of the ports NPS. He gave as an example the way the NPS set out how alternatives should be considered. If a port affects a wildlife habitat protected by EU law (and 25 of the 39 largest current ports are in or next to one or more), then less damaging alternatives must be considered. The NPS suggests that alternatives should consist of alternative sites for new port development, whereas the RSPB believes that the test should be alternatives to meet the same additional capacity, and should be in a hierarchy: considering making existing ports more efficient should come first, then enlarging existing ports, and only then creating new ports.

I asked one question. This was what paragraph 1.11.12 meant in the draft NPS, because I think it is ambiguous. It is also possibly the most important paragraph in the draft, because it summarises whether port development is needed. It says there is a compelling need for new port development, but it could be interpreted to say that that compelling need is already met by consented and applied for schemes, although additional development might be considered (i.e. a weak need case).

Alternatively it could be saying that there is a compelling need for port development over and above that already consented and applied for (i.e a strong need case). It turns out that the DfT meant more or less the first interpretation (when I had thought it was the second), i.e. that it might be possible for the IPC to turn down an application because it was not needed enough, particularly if it harmed a protected wildlife habitat. In further discussion, different people at the consultation had interpreted the paragraph different ways. Since there is no guarantee that the IPC will interpret it in the same way as the DfT, it should probably be clarified in the final draft. Further, as my colleague Francis Tyrrell, who gave a presentation on whether the NPS was fit for purpose (answer: yes, with a few caveats), said, the NPS really only deals with need for container port capacity, not ro-ro or bulk.

One last thing: there was a brief mention of the National Networks NPS, which is delayed until March and will deal with road, rail and rail freight interchanges. It will set out 14 'strategic corridors'.

85: Hartlepool Council supplements government consultation on Nuclear NPS

13th January 2010

Today's entry looks at Hartlepool Council's own efforts to consult on the proposed nuclear power station in its area.

The Nuclear Power National Policy Statement, one of seven published on 9 November, identifies ten sites as potentially suitable for new nuclear power stations. According to the Planning Act, the government must publicise the proposals in the locality of each site on the advice of the local council, and take the responses into account.

The government embarked on a programme of exhibitions and public meetings for each site (still continuing - see this earlier blog entry for details). The first exhibition started in Hartlepool on 12 November, with the corresponding public meeting on 14 November. The short time between the publication of the NPS and the local consultation has been criticised, but the government is not planning on holding any further local events there.

Presumably unhappy with the level of consultation in its area, Hartlepool Council has taken it upon itself to conduct its own local consultation exercise, and this week announced that it would be holding a 'Question Time'-style public meeting at 6 p.m. on Tuesday 26 January. This will be held at the Maritime Experience - ironically the same venue that the government held its exhibition and meeting. Invited to be on the panel are representatives from DECC (the relevant government department), EDF (the owner of the site) and Greenpeace. If you are interested in going, the deadline for applying is 20 January, and you should email This email address is being protected from spambots. You need JavaScript enabled to view it..

The council has also created an online questionnaire, with a closing date of 29 January. The results will be passed on to the government whose own deadline is 22 February. The questionnaire asks ten simple questions starting with 'Before you visited this website, were you aware that a new nuclear power station might be built in Hartlepool?'. A link to the questionnaire is here. Having read this blog entry, you will have to answer 'yes' to the first question.

84: Third tranche Planning Act 2008 statutory instrument laid before Parliament

12th January 2010

Today's entry reports the laying of the first of the 'third tranche' of statutory instruments before Parliament.

The fleshing out of the Planning Act 2008 regime by means of secondary legislation is to take place over four 'tranches', according to the latest 'route map' produced by the Department for Communities and Local Government. Two tranches are already in force. The third has been consulted upon and is planned to come into force on the same day as applications for nationally significant energy and transport projects must be sent to the Infrastructure Planning Commission (IPC), 1 March 2010. Full details of the four tranches are available from an earlier blog entry.

The first statutory instrument from the third tranche has recently been laid before Parliament. As it is subject to the affirmative procedure (Parliament must actively approve it rather than it coming into force as long as it is not objected to), it has been laid before Parliament in draft where it will wait for 40 days.

The SI is the Infrastructure Planning (Decisions) Regulations 2010, and can be found here. it sets out seven additional matters that the IPC (or, if no National Policy Statement is yet in place, the Secretary of State) must take into account before it makes a decision on an application.

The seven matters relate to listed buildings, conservation areas, ancient monuments, deemed consents under the Coast Protection Act 1949, deemed licences under the Food and Environment Protection Act 1985, hazardous substances and biological diversity.

The regulations did not change much as a result of the consultation. Regulations 4 and 5 were swapped over, and various additional matters covering Scotland were added.

83: Infrastructure Planning Commission publishes scoping opinions

11th January 2010

Today's entry looks at the first two scoping opinions published by the Infrastructure Planning Commission.

The Infrastructure Planning Commission (IPC) is the new independent body that will receive applications for nationally significant energy and transport projects from 1 March 2010 - a mere seven weeks away.

Most of the projects that the IPC will consider - being nationally significant, after all - will require environmental impact assessment (EIA) under European Union law. EIA is the process where for projects above certain size thresholds, the environmental impact of the project must be assessed and the decision maker made aware of what the impacts are and how they will be mitigated before making the decision. The main role for the promoter of a project is producing an Environmental Statement (ES) that sets out the promoter's view of the impacts and how it proposes to deal with them.

Not all projects will require EIA, though, since the thresholds in the Planning Act seldom match those in the EIA regulations. For example the Planning Act threshold for an airport is that it will have a capacity of at least 10 million passengers per year, whereas the threshold in the EIA regulations is that it will have a 2100 metre runway, or if not, that it will have significant effects on the environment. The full list of EIA thresholds can be found in the regulations here.

The IPC has two roles in EIA at the pre-application stage, 'screening' and 'scoping'. Screening is deciding whether a project needs EIA, and scoping is deciding, if it does, what the ES should cover. Projects coming before the IPC are unusual in that the applicant can't decide for itself that the project doesn't need EIA - it must ask the IPC to confirm that. It can decide that it does need EIA, however, and that seems to be the case for all of the projects currently in the pipelnie - there is no evidence yet that the IPC has been asked for a so-called 'screening opinion'.

Asking the IPC for a scoping opinion is voluntary, however - the promoter is at liberty to decide what should go into its ES. It is of course safer to ask the IPC for its opinion as to what the ES should contain.

At the end of December the IPC issued its first two scoping opinions, for the two nuclear power stations proposed by Horizon Nuclear power, the joint venture between RWE and E.On, at Oldbury, South Gloucestershire and Wylfa, Anglesey respectively. The scoping opinions can be found here and here. They are essential reading for those charged with the preparation of ESs for projects coming before the IPC.

The two opinions are quite long but the bulk of them is taken up with reproducing the responses they received from various consultation bodies. The meat of the Oldbury opinion is contained at pages 10-19, and the Wylfa one at pages 10-25. Both opinions are responses to the 'scoping report' produced by the promoter for each site - i.e. its own view of what should go into the ES. The Oldbury one was produced by RPS, and I think I detect the hand of the Cooper Partnership in the Wylfa one. They can be found here and here. The two cover the same topics, although the Oldbury one additionally covers the marine environment. The IPC is satisfied with the topics for the Wylfa report, but asks that elimination of waste, transportation of waste off-site, use of natural resources and climate factors should be included in the Oldbury ES in addition.

The two opinions have different authors but the same chapter headings, although the Wylfa one has an additional chapter called 'Presentation of the Environmental Statement' that talks about paragraph numbering etc.

The IPC is suggesting quite a lot of additonal information for inclusion in the two ESs in addition to that proposed by the promoter. Other promoters who have not sought a scoping opinion would be advised to pay heed to this advice.

Finally of note is that the IPC has erred on the side of caution in interpreting the wide list of local authorities it should consult, and has consulted even more than strictly necessary. For Oldbury it consulted Monmouthshire and Forest of Dean, both across the Severn Estuary from South Gloucestershire, which contains the site. For Wylfa, it consulted Gwynedd and Conwy councils and also the Snowdonia National Park Authority, all across the Menai Strait from Anglesey. The message is therefore if your project is in a coastal local authority you should include authorities 'across the water', if there are any.

81: Infrastructure Planning Commission expects four more projects and gives dates

7th January 2010

Today's entry gives news about the Infrastructure Planning Commission's programme of projects.

The Infrastructure Planning Commission (IPC) is the new independent body that will start receiving applications for nationally significant transport and energy projects from 1 March 2010.

Today it has rejigged its programme of projects (previously reported here when first launched), adding four new projects and giving dates when it expects to receive them.

Here is the full list of projects and dates, with an asterisk for the new projects.

One of the new projects therefore leapfrogs all the others to be the first one planned to be submitted - the Rookery South Waste Combustion Plant. Some of the dates look a little ambitious to me, but we shall see. The IPC will change its project list over time, but this blog entry will remain as a record of the originally anticipated dates.

80: Planning Act 2008 – when you have to consult up to 39 local authorities

6th January 2010

Today's entry is a continuation from Monday's (no. 79), and sets out the situations when a large group of local authorities must be contacted.

The Planning Act imposes requirements on the government, promoters and the IPC to consult or notify not only the local authorities in which a project is situated, but also those that share a border with them. Given that a project could be in a district, county and National Park all at the same time, this means that an average of 17 councils must be contacted (I've counted them) with a maximum of 39 involved for a single-site project. If a project crosses local authority boundaries it could be even more. Not sure which councils to contact? Drop me a line and I'll let you know.

There are five main occasions when this larger group is involved.

* First, if a National Policy Statement (NPS) names sites as suitable or potentially suitable for development, then the wider set must be consulted on how to publicise the NPS locally. This applies to the Nuclear NPS of those published so far, and is expected to apply to the Airports NPS as well. Watch out for a Planning Magazine investigation into the extent this was done for the Nuclear NPS.
* Secondly, those in the wider set of authorities must each be consulted before an application for a project can be made, as part of the extensive pre-application consultation requirements. Missing one could mean getting the application thrown out by the IPC for inadequate consultation.
* Thirdly, if any of them were not satisfied that the pre-application consultation was carried out properly (or if they were satisfied), they can submit an ‘adequacy of consultation report’ to the IPC complaining about it (or supporting it).
* Fourthly, and most importantly, they can submit a Local Impact Report – LIR (‘liar’?) on the impact that the authority reckons the project will have on its area. This will be each authority’s chance to inform the IPC of the project’s compliance with its development plan policies and the mitigation it suggests, amongst other things.
* Finally, the wider group of authorities are also ‘interested parties’ for the purposes of the Act, so the IPC must invite them all to the preliminary meeting, tell them of any procedural decisions it makes, hold an open floor hearing if they request one, and allow their representatives to speak at specific-issue and open floor hearings.

That concludes the investigation into the number of local authorities that will be involved in assessing a nationally significant infrastructure project. It may not be the last you will hear, however, of whether the government should support local authorities financially for their increased number and increased role, or whether the government fulfilled the first duty outlined above. Both issues were triggered by this blog but have been taken up by others.

79: Planning Act 2008 – local authority consultees easy to miss and a free offer

4 January 2010

Today’s entry gives the low-down on the much higher number of local authorities that must be involved in an application under the Planning Act 2008 and why promoters should take care not to miss any.

The Act gives several roles to local authorities, both in the process of developing national policy statements and then considering applications for nationally significant infrastructure projects. Some of these roles apply just to the authorities in which proposed development is situated, but some apply to a much wider class of authorities. See this earlier entry for full details of all the new roles for local authorities.

The dramatic increase in the number of local authorities may not yet be fully appreciated. Where under existing regimes, the single local planning authority (i.e. the district, borough or city council, or a unitary authority) was the sole authority involved in an application for a major infrastructure project, there could now be up to 39 authorities involved, with a greater number of roles.

This is because some of the responsibilities on local authorities are given not only to those in whose areas a proposed project is situated, but also any other authority that shares a boundary with them. So if a project is to be in a two-tier area (i.e. where there are county and district level authorities), all the county and district authorities bordering the county council area as well as the district council area are included. I gave an example in a previous blog entry of a proposed (fictional) project in Ribble Valley in Lancashire. In that case no fewer than 29 authorities would be involved (I said 28 in the earlier post, but I’d missed out the Yorkshire Dales National Park Authority). That is one of the higher totals, but by my calculations an average of 17 authorities must be consulted on every project.

I say ‘by my calculations’ because I have produced a table of all 350 or so authorities in England and Wales, setting out the wider set of authorities for each one. That turned out to be no mean task and involves over 6000 references to local authorities. The joint lowest are the Isles of Scilly, the Isle of Wight and Anglesey, with no neighbours. Whether you count those on the mainland depends on where you draw the authorities’ borders, although I would advise consulting them even if not strictly required. Indeed, the IPC itself has chosen to consult authorities across water when preparing its EIA scoping reports (more on this soon). The joint highest are Winchester and East Hampshire, which for a project in part of either of those authorities that is in the just-designated South Downs National Park, have a whopping 38 neighbours each, as far apart as Dorset and East Sussex. On the other hand, the prize for the most popular consultee goes to Wealden in East Sussex, which will get consulted on projects in 38 local authority arieas.

If an authority is missed by a promoter, then this risks the jilted authority submitting an 'adequacy of consultation' report to the Infrastructure Planning Commission (IPC) and (whether or not this is done) the IPC throwing out the application for inadequate consultation. Failure to adhere to the procedural terms of the Planning Act will count just as much - if not more - than failure to hold enough events or demonstrably take consultation responses into account.

If you are struggling to work out who the neighbouring authorities are for a particular project or for land identified in an NPS, (i.e. for the purposes of sections 8, 43 or 102 of the Act,) then drop me a line and I will tell you for free which authorities you should contact. If you want the whole list then you will have to instruct me as your legal adviser – there are limits to my generosity!

One last thing. The way the neighbouring authorities are defined – in terms of sharing borders – introduces an unexpected anomaly in the system. Councils, often city councils, that are wholly inside and therefore do not share a boundary with the county council, might get left out even when a project is to be in that county. If a project is in a district not adjacent to the city, then the city does not share a border with either the district or the county and so need not be consulted. By my calculations this applies to Cambridge, Cheltenham, Chesterfield, Gedling, Lincoln, Northampton, Norwich, Oxford, Preston, Stevenage, Watford, Woking and Worcester.

78: Shortened consultation on railway operators for Planning Act 2008

21st December 2009

This entry reports on a short consultation relating to railway infrastructure projects.

An earlier blog entry referred to one piece of secondary legislation that did not appear to be included in the government’s ‘route map’ for implementing the Planning Act and was potentially missing. It has now turned up, and is being consulted on for a festive four weeks.

The regulation sets out on whose network a railway project must be for it to be a nationally significant infrastructure project. Not surprisingly the two network operators that are identified are Network Rail Infrastructure Ltd (who run the main national network) and Network Rail (CTRL) Ltd, who are the infrastructure operator for the Channel Tunnel Rail Link, or High Speed 1, from the Channel Tunnel to St Pancras.

Note that this therefore excludes heritage railways, tramways, light railways, metro systems (e.g. the London underground), industrial railways and military railways.

The consultation period is rather shorter than the recommended 12 weeks, justified because John Healey, the Planning Minister, said what it would contain in Parliament on 2 June 2008, although he also referred to the Heathrow Express.

The consultation document does not appear to be on the DfT website yet, so I'll do the DfT's job for it. The deadline for responding is 13 January 2010. Responses should be addressed to Stephen Wolstenholme, Head of Rail Support and Communications Division, Zone 5/29, Department for Transport, 76 Marsham Street, London SW1P 4DR; Tel: 020 7944 8317; This email address is being protected from spambots. You need JavaScript enabled to view it.

77: Infrastructure Planning Commission issues its first guidance and standards

21st December 2009

This entry summarises the first two guidance notes produced by the Infrastructure Planning Commission.

The Infrastructure Planning Commission (IPC), which starts receiving applications for nationally significant energy and transport projects from 1 March 2010, has issued its first two guidance notes, as it is entitled to do under the Planning Act.

First, it is important to contrast guidance with standards. According to the Act, the former is not mandatory (but must be had regard to), whereas the latter are mandatory. Unfortunately, the second guidance note also contains standards, and it is (a) not obvious from the title that it does and (b) not clear within the document which bits are non-mandatory guidance and which are mandatory standards. It would be clearer if the second note were split into guidance and standards and labelled accordingly.

Guidance Note 1 deals with pre-application consultation. It does contain quite a lot of information that prospective applicants would be advised to read. Here are some examples. The guidance acknowledges that the pre-application regulations do not deal with preliminary environmental information (the draft Environmental Statement at whatever stage it has reached) properly, because although it has to be mentioned in the Statement of Community Consultation (SoCC), there is no obligation to include it in the consultation itself (an amendment to the corresponding guidance is promised). The guidance does suggest that it would be a good idea to include it, to ensure that the consultation is properly meaningful. It goes further and suggests that it be made available to the local authority when the SoCC is consulted upon.

The guidance recommends that the statutory body consultation ends on the same date or as close as possible to the end of the public consultation, but then later suggests that the statutory body consultation could be carried out first, so that changes can be made to the project before the public consultation.

The guidance acknowledges that the SoCC may not be fully comprehensive due to local press requirements (i.e. restricting its length), but that a fuller document could also be made available.

There is a fair amount of helpful advice on what should be included in the SoCC (paragraphs 24-27). The guidance goes as far as suggesting that the SoCC publication and subsequent consultation be delayed until any consultation on the relevant NPS is over to avoid 'consultation fatigue'. For energy projects that would mean waiting until after 22 February 2010, and for ports projects until after 15 February 2010.

Finally, the guidance recommends the production of ‘Statements of Common Ground’ with as many objectors as possible and the local authority in particular. It also recommends that local authorities focus on starting their ‘Local Impact Reports’ as early as possible, before the application is made.

Guidance Note 2 deals with the lengthy application form and contains standards as well as guidance. There is guidance on pagination and paragraph numbering of documents and plans. Three copies of the application suite should be provided on paper and 10 on DVD (do they mean CD, or am I being old-fashioned?).

Details are given about the ‘consultation report’ that the promoter must produce saying what consultation was carried out, who responded and what they did about it. Respondents must be categorised and for each, it must be shown whether the project was changed as a result of their responses or not.

“Applicants are advised to consider engaging a person with the necessary legal expertise to draft their [Development Consent] Order.” Hear, hear! Indeed, here, here. There is quite a lot of information on what should be in a DCO, but your legal expert will deal with all that.
The guidance recommends that heads of terms of any development consent obligations (i.e. s106 agreements) are agreed before an application is made to the IPC.

Two application documents can be included as appendices to the Environmental Statement, if there is one, rather than being issued separately: a flood risk assessment and a statement on statutory nuisance.

Finally, appropriate assessment: the IPC will refuse to accept an application if the project will have an effect on one or more European (protected nature) sites and does not have a report accompanying it that enables (a) a formal assessment of whether there is a likely significant effect on the site(s) and (b) the carrying out of appropriate assessment if required.

76: Select Committee oral hearings into National Policy Statements announced

21st December 2009

This entry has news about Parliamentary hearings on National Policy Statements.

Both the Transport Select Committee and the Energy and Climate Change Select Committee of the House of Commons have announced that they will hold oral hearings into the seven National Policy Statements that were published on 9 November, lasting from 6 January to 10 February 2010.

The Energy and Climate Change (ECC) Committee will hold hearings on six consecutive Wednesdays into the six energy NPSs, and the Transport Committee will hold hearings on three consecutive Wednesdays into the Ports NPS. Sadly two out of three of the Transport Committee meetings will clash with ECC Committee meetings, so Planning Act junkies like myself will not be able to get a complete fix. One of the Transport Committee and ECC Committee clashes is also on the same day as one of the public consultation meetings on the energy NPSs – the one on 20 January in Cardiff.

Here is the full timetable, all in one place for the first time:

Wednesday 6 January - ECC Committee

9.15 am
Royal Town Planning Institute
Planning Aid
Town and Country Planning Association
10.15 am
Royal Institute of Chartered Surveyors
Institution of Civil Engineers
Wednesday 13 January - ECC Committee

9.15 am
Sustainable Development Commission
Campaign to Protect Rural England
10.15 am
Friends of the Earth
RSPB
WWF
3.15 pm
Friends of the Earth
Greenpeace
WWF (it may be a mistake that FoE and WWF get two slots!)

Wednesday 13 January - Transport Committee

2.45 pm
Town and Country Planning Association
RICS
PEBA
3.30 pm
LGA
RDAs
4.15 pm
County Surveyors Society
Highways Agency
Network Rail
Chartered Institute of Logistics and Transport

Wednesday 20 January - ECC Committee

9.15 am
Renewable Energy Association
British Wind Energy Association
10.15 am
Energy Networks Association
National Grid
3.15 pm
Nuclear Industry Association
Nuclear Decommissioning Authority
4.15 pm
Dieter Helm (Oxford professor of energy policy)

Wednesday 20 January - Transport Committee

2.45 pm
British Ports Association
UK Major Ports Group
ABP
Peel Ports
Port of Felixstowe
3.45 pm
Freight Transport Association
CBI
Rail Freight Group
4.30 pm
Environment Agency
Greenpeace
RSPB

Wednesday 27 January - ECC Committee

9.15 am
E.ON
EDF Energy
RWE Npower
Association of Electricity Producers
10.15 am
Centrica
Scottish Power
Scottish and Southern Energy
UK Business Council for Sustainable Energy
3.05 pm
Pobl Atal Wlfa B
Stop Hinkley
3.30 pm
Radiation Free Lakeland
Kirksanton Residents
Braystones Residents
4 pm
Shut Down Sizewell Campaign
Communities against Nuclear Expansion
Blackwater Against New Nuclear Group

Wednesday 27 January - Transport Committee

2.45 pm
Infrastructure Planning Commission
Paul Clark MP, Ports Minister
Wednesday 3 February - ECC Committee

9.15 am
Law Society
Planning and Environment Bar Association
10.15 am
Environment Agency
Natural England
3.15 pm
Infrastructure Planning Commission
4.15 pm
Local Government Association

Wednesday 10 February - ECC Committee

9.15 am
Department of Energy and Climate Change

75: Three more commissioners appointed to the Infrastructure Planning Commission

21st December 2009

Today's entry has news about new appointments to the Infrastructure Planning Commission (IPC).

Three more commissioners have been appointed to the IPC, taking the total to nine so far. The new commissioners are (from left to right) Gideon Amos, former Chief Executive of the Town and Country Planning Association and already widely rumoured to have been appointed, Katharine Bryan, most recently Chief Executive of Northern Ireland Water, and Emrys Parry, partner at law firm Bond Pearce specialising in compulsory purchase.

An earlier blog entry reported the first six commissioners to be appointed. The full list of nine is now:

* Sir Mike Pitt (Chair),
* Pauleen Lane (Vice Chair),
* Robert Upton (Vice Chair),
* Gideon Amos (Full-time Commissioner),
* Jan Bessell (Full-time Commissioner),
* Katharine Bryan (Full-time Commissioner),
* Paul Hudson (Full-time Commissioner),
* Emrys Parry (Full-time Commissioner), and
* Glyn Roberts (Full-time Commissioner).

74: Updated route map published for implementation of the Planning Act 2008

15th December 2009

This entry has news of an updated government timetable for implementation of the Act.

A third ‘route map’ was published today by the Department for Communities and Local Government with the latest timetable for implementing the new Planning Act 2008 regime for authorising nationally significant infrastructure projects, following earlier editions published in January and July.

The route map states that the timetable for the set-up of the Infrastructure Planning Commission remains on track and is ‘very unlikely’ to change, but the NPS process ‘inevitably continues to be subject to potential change’, i.e. it’s slipped a bit.

The basic text of the route map remains the same, but some points are worth noting, as follows.

The three packages of statutory instruments and guidance to accompany the Planning Act itself are to be supplemented with what is now officially termed a fourth package, dealing with changes to development consent orders and other post-consent matters, and this will be issued for consultation in March 2010. It is expected to come into force on 1 October 2010. That could still be after the first development consent orders are approved but the chances of process for which 15 months are allowed (or 12 months once NPSs are designated) taking nine months are slim.

Non-statutory guidance (i.e. the Planning Act doesn’t require CLG to produce it) is announced for early 2010 setting out the role for local authorities in the new process.

The government expects to designate (finalise) the first seven National Policy Statements ‘later in 2010’, although it may not be the same government by then.

The remaining five National Policy Statements are given a slightly revised timetable – the Airports NPS being brought forwards.

Title - publication date - designation date

National networks (road, rail, rail freight interchanges) - Early 2010 (same as before) - Late 2010
Waste water - Spring 2010 (was ‘Early 2010’, so probably a bit later) - 2011
Hazardous waste - Summer 2010 (was ‘Mid 2010’, so probably the same) - 2011
Water supply - Late 2010 (as long as Water Resource Management Plans have been finalised by then) - Early 2012
Airports - Early 2011 (was ‘By 2011’, which sounds later) - Late 2011

Finally, the route map confirms what happens if the relevant NPS is designated while an application is being considered by the IPC, and it is what I had previously reported. If the IPC has not reached the end of its six-month evidence-gathering stage, then it will decide the application, otherwise it will make a recommendation for the government to make the decision. That still leaves a question of detail or two – for example what happens if the finalised NPS is materially different from the draft NPS that the IPC has been working with?

73: Infrastructure UK to co-ordinate funding of nationally significant infrastructure projects

11th December 2009

Today's entry has news about a government body being set up to consider infrastructure needs.

Although it did not mention the Planning Act specifically, Wednesday’s Pre-Budget Report (PBR) had something to say about the funding of the projects that will come under the new regime. The government is establishing ‘Infrastructure UK’ to co-ordinate the funding of such projects (and I note in passing that there is already a private company of the same name at www.infrastructureuk.com, which may get some unexpected traffic).

Infrastructure UK will be formed from three existing bodies: TIFU (the Infrastructure Finance Unit), which is part of the Treasury and was only set up in March; another part of the Treasury dealing with PPP (public-private partnerships) policy; and part of Partnerships UK (itself a PPP that supports the delivery of infrastructure, which will remain as a slimmed down investment business). Chair of the Board will be Paul Skinner, formerly of Rio Tinto Zinc, and its chief executive will be the current chief executive of Partnerships UK, James Stewart. The Minister in charge will be Lord Davies of Abersoch.

The pre-budget report says that IUK will develop a strategy for the UK’s infrastructure over the next 5 to 50 years, to be published at the 2010 Budget (which may not be until after the next election). That statement appears to have a slightly worrying lack of reference to the suite of National Policy Statements that are just being rolled out under the Planning Act, which are addressing a similar issue. Unless it means ‘a strategy for the funding of the UK’s infrastructure’, then some joined-up thinking is needed. This morning, however, I spoke to an official at BIS who told me that it is indeed concerned with funding and that they are aware of the NPSs.

IUK will look at new (PPP/PFI-like) funding models, as well as prioritising the government’s own investment in infrastructure, and providing incentives for new technology for infrastructure. The PBR also talks about the government’s delivery and support for delivery of major infrastructure projects.

The projects that will be covered by IUK include all five of the project areas covered by the Planning Act 2008 – energy, transport, water, waste water and waste – and also telecommunications infrastructure.

The emphasis is on low-carbon energy projects, and IUK will deal with things like the UK’s £90m contribution to the European Investment Bank’s 2020 European Fund for Energy, Climate Change and Infrastructure, changes to the electricity market, and the potential creation of a separate ‘low carbon investment institution’.

The government also mentions the second high speed rail line from London to the West Midlands and beyond, and rolling out next-generation broadband to 90% of the population by 2017. The latter project is not covered by the Planning Act (and could not be added to it without amending it), but the Scottish equivalent of National Policy Statements, the National Planning Framework, does include telecomms infrastructure.

Whether this means that potential promoters of nationally significant infrastructure projects can approach Infrastructure UK for a grant or loan towards their projects remains to be seen, but it does appear to be charged with allocating government money.

Let us hope that IUK is fully integrated with the Planning Act process.

72: Planning Act 2008 - thresholds too high or too low?

9th December 2009

Today's entry discusses the thresholds for projects to come within the new regime.

The Planning Act applies a new consent regime to sixteen different types of project – the first time that energy, transport, water and waste projects will use the same regime for authorisation. For each type of project, a threshold is declared, above which a project must use the new regime, and below which it cannot unless the government decides to upgrade it. At yesterday’s airports conference a number of speakers – including Sir Mike Pitt, Chair of the Infrastructure Planning Commission (IPC) – were of the view that the threshold for airport infrastructure was set too high. Today’s blog entry compares the thresholds in terms of the numbers of projects likely to be referred to the IPC, using data provided by the government on how many projects in the year 2008 would have been above them.

The government can vary the thresholds by issuing a ministerial order, which would be subject to the ‘affirmative resolution procedure’ in Parliament (i.e. it must be positively voted through rather than going through unless voted down). This may happen once the new regime has operated for a while to even out inconsistencies in numbers of applications of different types.

The airport infrastructure threshold is probably the highest of the lot, at a capacity increase of 10 million passengers per year or 10,000 air cargo movements per year. Given that only four UK airports currently have a throughput of more than 10 million passengers per year (Heathrow, Gatwick, Stansted and Manchester), it is unlikely that any others would fall within the new regime as they would have to more than double in size. Given that Manchester’s second runway is fairly recent and Stansted’s application for one is already in – and leaving aside ‘Boris Island’, on which even Theresa Villiers refused to speculate – that leaves only two airports in the frame for the foreseeable future. If the Planning Act had been in force for 2008, the government estimates that only Stansted would have used it that year.

In 2008 there would also only have been one port application, the threshold being an ability to handle at least 500,000 (more) containers per year, 250,000 ro-ro units or 5,000,000 tonnes of loose material (or a proportionate combination of these), and one strategic rail freight interchange application, the main threshold being a size of at least 60 hectares (plus some other features). Having said that, I think that future projects of those two types are more likely than airport projects.

The lowest threshold is a toss-up between the ones for electricity generation and electric lines. Anything onshore that is able to generate more than 50MW – or 100MW offshore – or an extension to an above-threshold generating station of whatever size (so adding a single turbine to a 60MW wind farm would count), comes within the Planning Act. If the Planning Act had been in force for 2008, the government estimates that nine electricity generation projects, including four wind farms, would have used it. For electric lines, the threshold is a line that carries at least 132kV. This time the 2008 figure is estimated to have been 10 projects.

Although the government estimates that there would have been no LNG (liquid natural gas – is that an oxymoron?) facility applications in 2008, that does not necessarily mean that the threshold is too high. It is simply that all such projects are infrequent.

The most complicated threshold is probably the threshold for roads. This is not a numerical threshold, but is expressed in terms of highways for which the Secretary of State is the highway authority (mainly motorways and trunk roads), which I will call major highways. The new regime applies to (a) the construction of a major highway or a highway constructed for a purpose connected with a major highway; (b) the improvement of a major highway if it would need environmental impact assessment; and (c) the alteration of a highway by the Secretary of State for a purpose connected with a major highway. Note that the connected 'highways' don’t even have to be vehicular ones – they could be as lowly as footpaths if their construction or alteration was for a purpose connected with a major highway. Despite this seemingly low threshold, the estimate of 2008 above-threshold highway projects was only two.

The most obscure threshold is for railways. There, the threshold is that a project on the main network could not have relied on ‘permitted development rights’ (PDRs) to get permission, which are a sort of advance blanket planning permission. PDRs can usually be used if a railway would remain in the original corridor set out in the (usually 19th century) Act of Parliament that authorised its construction. This means that the threshold is not necessarily related to size – quite a quite a small project, for example a chord joining two existing railways, might fall within it. Quite a large project might not reach the threshold – for example the redevelopment of Reading station, involving new platforms and rearranged lines, would not have done.

Those are eight of the thresholds. There are others – expressed in fairly simple size terms - for gas storage facilities (two in 2008), gas reception facilities (none in 2008), gas transporter pipe-lines (three in 2008), other pipelines (two in 2008), railways (none in 2008), sewage works (three in 2008), dams and reservoirs (none in 2008) and hazardous waste projects. The government is not sure about the last one as they might have been authorised by a local planning application and never have reached them.

There may be lobbying to raise or lower thresholds as the new system gets under way, possibly due to the numbers of projects, but also if promoters think that the new regime would be to their disadvantage or advantage respectively.

71: Planning Act 2008 - latest Conservative and Lib Dem position

7th December 2009

Today's entry gives up-to-date details of the opposition parties' stance on the Planning Act.

As has previously been reported, both the Conservatives and the Lib Dems have declared that they would abolish the Infrastructure Planning Commission if they became the party - or a party - of government after the 2010 election. After visiting a round of conferences in the last week where I have heard politicians from both those parties speaking about the regime, I can update you on their latest position. Summary: it has hardly changed and it isn't very edifying - yet.

Bob Neill MP, shadow planning minister, spoke at a Waterfront conference held at Sadlers Wells in London last week. He reiterated the Tories' two main issues with the new system:

- they like National Policy Statements but would introduce a binding Parliamentary vote on them; and

- they don't like the IPC making decisions and would recover the government's decision-making powers (with a time limit of something like three months, which is the same set-up as at present if there is no NPS in place).

So far so clear. What is less clear is what the IPC would be replaced with if it were abolished. It seems that the Conservatives would keep its essential role but rebadge it as part of the Planning Inspectorate (PINS). However, unpicking that apparently simple surface reveals various further thoughts. Bob Neill seemed to suggest that the currently appointed IPC Commissioners would be gradually replaced by existing planning inspectors once they had had proper training. He also suggested that private or hybrid Bills in Parliament would be more appropriate for long linear schemes than the Planning Act process. I think he probably had railways in mind rather than electric lines or tidal barrages, but perhaps the unified consent regime won't be so unified after all.

All is expected to become clearer with the publication of an eagerly-awaited 'shadow green paper' on planning that was originally due in October but is now expected 'around Christmas' - so, early January?

Meanwhile, I had the chance to ask Vince Cable MP, shadow chancellor for the Lib Dems, what they would replace the IPC with at a conference this morning (the Airport Operators Association annual conference). To be fair to him, it is not really his area, but he had just bemoaned the time it took to authorise Heathrow Terminal 5, so I decided he was fair game.

His answer revealed that he seemed to be under the common misunderstanding that the Planning Act takes decision-making powers away from local authorities, when it rarely does (albeit not as far as the 'never does' claimed by the IPC in one if its brochures). He suggested that although their decisions were often unpalatable to the government, local authorities were best placed to make them. He also said that the existing system could be adapted to make it shorter.

I have emailed the Lib Dem shadow secretary of state for communities and local government to see if I can find out more about the party line on this issue. Watch this space for a reply from her and also the publication of the Tory 'green paper'.