Angus Walker's Planning Blog 171-190

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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190: Parliamentary scrutiny of energy and waste water NPSs revealed

24th November 2010

Today's entry reports on the programme for parliamentary scrutiny of the energy and waste water National Policy Statements.

Energy

Six energy National Policy Statements (NPSs) were first published in November 2009, and following consultation and parliamentary scrutiny - and an election - revised versions were published last month (see blog entry).  NPSs set out the need for new infrastructure, and what applicants should assess and the Infrastructure Planning Commission (IPC) should consider when applications are made.

The parliamentary scrutiny in the Commons on the original drafts consisted of consideration by the Energy and Climate Change Select Committee, which invited written evidence to be sent to it and held ten evidence-gathering sessions where its members questioned representatives of energy companies, environmental organisations, the IPC and the government on the content of the NPSs, and produced a report of its recommendations.

Unlike the Transport Select Committee on the Ports NPS, the report did not conclude that the NPSs were not fit for purpose, but nevertheless had some criticisms of them (see blog entry).  One of the main ones was that the 'Appraisals of Sustainability' (AoSs) that had been published alongside the NPSs did not consider alternatives properly.  Although the revised NPSs have not changed a great deal, the AoSs that are published with them have, particularly in how they deal with alternatives.  The number of identified sites for nuclear power stations was also reduced from ten to eight, two in Cumbria being dropped.

Revised NPSs now having been published, the Energy and Climate Change Select Committee has decided that it will only have a single evidence session with a single witness, and does not appear to be inviting written evidence.  Next Tuesday, 30 November, at 4.15 p.m., the committee will hear evidence from Charles Hendry MP, the energy minister (no doubt aided by officials from DECC, and possibly also CLG given the subject-matter).

Four topics for discussion have been identified by the committee, not all of which relate directly to the NPSs:

* the implications of changes in the Planning Act 2008 for the implementation of the National Policy Statements;
* the robustness of transitional arrangements preceding the abolition of the IPC and the creation of the MIPU;
* the implications of changes to the Appraisals of Sustainability for the assessment of the National Policy Statements; and
* how the changes in the revised draft National Policy Statements will affect their contribution to the Government’s energy policy objectives.

The first two of these relate to the forthcoming Localism Bill, which was to have been published in time for the committee session, but as we heard on Monday, will now not be.  It will therefore be interesting whether any further information about the changes to the regime will be divulged (and there are also CLG questions tomorrow).

The reduced evidence-taking is likely to be because the NPSs have not changed significantly, but then again the make-up of the committee has changed significantly since the consideration of the previous drafts.  Only three of the twelve members were in post at the start of this year, which may mean that some issues do get revisited.  The membership is currently (with an * against pre-election members): Tim Yeo (Chair), Dan Byles, Phillip Lee, Christopher Pincher, Laura Sandys (Con), Barry Gardiner, Ian Lavery, Albert Owen, John Robertson*, Alan Whitehead* (Lab) and Sir Robert Smith* (LD).

I will attend the session and hope to report on it shortly thereafter.

The committee then has until 21 December to send its report to the government, being 39 days before the 'relevant date' of 31 January 2011 announced upon the publication of the revised draft NPSs.

The House of Lords may also consider the revised drafts, but as it doesn't have departmental select committees, it is likely to have a debate in Grand Committee as it did before.  No date has yet been set for this, but it will have to be before 31 January (the 39-day rule only applying in the Commons).

In parallel, there is a public consultation exercise running, which ends on 24 January 2011.  The government asks respondents to concentrate on the changes made to the NPSs and the accompanying documents, rather than seeking to revisit the policies they set out.

Debates on the floor of both Houses are then expected, given the coalition government's pledge to have a Parliamentary vote on NPSs to ratify them.

Waste water

Meanwhile, the Environment, Food and Rural Affairs Select Committee of the Commons has called for evidence on the Waste Water NPS, published (for the first time) last week - see this blog entry and here is a link to the NPS.

The committee is going to consider the following four issues:

* responses to the questions in Defra’s consultation;
* do the general planning principles set out in the proposed Waste Water NPS form a coherent, appropriate, proportionate and practical framework within which the Infrastructure Planning Commission and other planners can assess future waste water infrastructure planning applications?
* are the sustainability and environmental criteria outlined in the draft Waste Water NPS and associated documents appropriate, proportionate and practical? and
* have issues or principles been left out which should have been included in the draft Waste Water NPS?

Written evidence should be sent to the committee by 5 January 2011.  To quote the committee website on how to prepare and send evidence:

Submissions should be in Word or rich text format and sent by e-mail to This email address is being protected from spambots. You need JavaScript enabled to view it.. The body of the e-mail must include a contact name, telephone number and postal address. The e-mail should also make clear who the submission is from.

Submissions must address the terms of reference [set out above]. They should be as brief as possible, and no more than 1,000 words. Paragraphs should be numbered for ease of reference, and the document must include an executive summary (no more than one page long).

The committee is likely to hold oral evidence sessions thereafter (dates to be announced, and reported here when they are), so if you wanted to appear before them to give evidence you should probably mention this in the written submission.  It must report by 39 days before 11 May 2011, i.e. 2 April 2011.

Again, the Lords is likely to consider the NPS at a meeting of its Grand Committee, but it does not need to hold this until 11 May 2011.

There is also a public consultation exercise running, which closes on 22 February 2011.  The committee will be given copies of responses to this consultation received by its deadline of 5 January, but you are able to respond separately to the committee as set out above.

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189: Localism Bill delay, but here are its likely contents

22nd November 2010

The Localism Bill was widely expected to be published today, partly aided by a declaration by Greg Clark MP in a speech on Thursday that it was 'imminent'.  Now it seems it may be delayed for a further two or even three weeks.

The official reason for the delay is 'Parliamentary congestion', which is not a seasonal virus but the fact that time on the floor of either House for the Bill to be considered is difficult to find.  Unofficially, it is believed to be wrangling over some of the Bill's contents, notably what powers will be given to directly elected mayors outside London (see below).

Undaunted by this news, I have harvested the hints and speculation and bring you what the Bill is likely to contain - and not to contain. The Bill is expected to be some 300 clauses long and cover a disparate assortment of changes to planning and local government.

Infrastructure planning

One of the main jobs of the Localism Bill will be to amend the regime for authorising nationally significant infrastructure projects (NSIPs) introduced by the Planning Act 2008 - hence its relevance here.  The Bill will amend the Planning Act rather than replace it (something of a relief given the name of this blog).

It is likely to amend the Planning Act to require National Policy Statements (NPSs) to be approved by a vote in Parliament.  This was a pledge of the Conservatives before the election, but is only referred to obliquely in the Coalition Agreement when setting out the Lib Dems' dispensations on nuclear power.

It is likely to amend references to the Infrastructure Planning Commission (IPC) to refer instead to the Planning Inspectorate (or the Major Infrastructure Planning Unit of it), which will take over consideration of NSIPs from April 2012.  MIPU will examine applications but decisions will be made by the government, as is currently the case until National Policy Statements have been finalised.  We are expecting the government to give itself a three-month deadline for making decisions once MIPU has made a recommendation.

The Bill is not going to tweak the thresholds that define whether a project is an NSIP or not.  This is because the Planning Act already contains a power to do this by order.  Indeed, an order is expected to be consulted upon in the new year on bringing the Thames Tunnel within the scope of the Act (helpfully meaning it won't have to involve abortive planning applications that are then 'called in').

It remains to be seen how much the Bill will address perceived gaps in the Planning Act regime, such as there being no body charged with discharging conditions attached to a development consent order, and no 'host' local authority for an offshore project.  The Bill may also enlarge the scope of development consent orders to restore items that were removed in response to the perceived 'democratic deficit' of the IPC deciding applications.

Other planning changes

The Bill is expected to abolish the level of plan-making above local authorities (regional strategies) but to add a level below local authorities (neighbourhood plans).  The text of the clause to do the former has already been published in response to the Cala Homes judgement (see earlier blog entry).  'Neighbourhoods' are likely to be formed around parishes or local government wards.

The pre-application consultation duty that is one of the main features of the Planning Act regime is to be extended to all major applications, not just infrastructure applications.  It will be interesting to see what the thresholds are for this and whether it is as extensive as the requirements in the Planning Act.  Such a duty may only be introduced when there is no neighbourhood plan in place, or may apply generally.

Local authorities may be required to complete their development plans by mid-2102.  These would be any uncompleted first iterations since the 'local development framework' was introduced by the Planning and Compulaory Purchase Act 2004.

A new 'duty to cooperate' between local authorities will be placed upon them.  This is to encourage decision-making at the right level - if a development impacts on a wide area, then the local authorities involved should get together rather than just the host one deciding everything.

There is to be a presumption in favour of sustainable development, but as this is likely to be qualified by compatibility with national, local and now neighbourhood development plan policies, it does not change the status quo that much.

The Bill will abolish Regional Development Agencies (RDAs), but despite RDAs having statutory powers, the Bill is not expected to give explicit powers to Local Enterprise Partnerships (LEPs), recently set up to replace them.

The Bill may deal with planning guidance and introduce a 'national planning framwork' to replace the current planning policy guidance and planning policy statements.

The Bill is not expected to contain rights of appeal against grants of planning permission (at the moment only refusals can be appealed).  This had been mooted in the Conservatives' 'green paper' Open Source Planning before the election.

Other non-planning changes

Councils are likely to be given a 'general power of competence', i.e. they can do anything that they are not prohibited from doing rather than only being able to do what statute allows them to do.  The Local Government Act 2000 appeared to go most of the way toward this, with a general power 'to promote or improve the social, economic and environmental well being of [local authority] areas' but that has not been interpreted very widely in practice.  This could have a significant effect on the doctrine of 'ultra vires' (outside the powers) that has been the subject of many a court case.

There is to be clarification of law on predetermination and bias in local government.  Councillors will have the carrot of more freedom to speak on issues they have views on, but the stick is that there will be criminal sanctions for making decisions for personal gain.

There are to be referendums on whether to have elected mayors (probably in 2012) in England's twelve largest cities outside London: eleven are Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle-upon-Tyne, Nottingham and Sheffield - can you name the twelfth?  The Bill was originally going to set up mayors for these cities without a referendum, but it has since been decided to let local people have a say first.  How Boris-like the powers given to such mayors will be appears to be one of the Bill's sticking points.

The matching by the government of council tax receipts from new homes may be included in the Bill to encourage house-building from the bottom up rather than from the top down via quotas in the doomed regional strategies.

The Bill may introduce a new way of privatising local authority-run services by allowing outside organisations (whether this will include private sector as well as 'third sector' groups is as yet unknown) to challenge local authorities that they can do better.

Finally, there is to be a shake-up of allocations for council housing and homelessness assistance.  A consultation on this subject was launched this morning.

So those are the Localism Bill headlines - I hope I don't have to eat my words in a couple of weeks' time. Oh, and the twelfth city is Wakefield.

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188: Lessons learned from Planning Act regime analysed at seminar

18th November 2010

A seminar held yesterday looked at lessons learnt from the Planning Act regime so far. At the seminar, Sir Mike Pitt, chair of the Infrastructure Planning Commission (IPC) defended the new regime as it came under scrutiny from two infrastructure planning experts.  The seminar was hosted by RPS, planning and environmental consultants - the third they have held on the new regime.

Sir Mike said that the IPC's caseload was growing, although as a rule of thumb, each month that passed usually meant about two weeks' progress on promoters' timetables.  He said that the IPC's policy of openness, where every email, conversation and meeting was summarised on the IPC website, gave stakeholders confidence in the system.  He said that the new regime focused on consensus between the parties and was not intended to result in a simple win/lose decision.

He displayed a slide showing the Rookery South application documentation (the application that is furthest through the process and whose objection deadline is tomorrow). This consisted of about 14 lever-arch files, a roll of plans a few CDs and four or five spiral-bound documents (which can be yours for £3000), but he refuted allegations that anyone making representations would have to read all of it.

He stressed that project promoters needed 'extremely good legal and technical advice' and only applications that were 'top quality' were likely to make progress.

He referred to the forthcoming demise of the IPC in terms of it being a merger between the IPC and the Planning Inspectorate.  He said that he hoped that the new regime would be the best of both worlds (the worlds being the Planning Act 2010 and the Localism Act 2011).  Although ministers would make final decisions on applications, he expected that decisions that went against the recommendation of the IPC or its successor would be very rare.

Robbie Owen of Bircham Dyson Bell then gave a lawyer's perspective on the regime so far.  He discussed the onerous pre-application consultation requirements and gave as an example the number of local authorities that must be consulted - up to 40, in some parts of the country.  See this blog entry for more on the subject.

He then stressed the importance of the development consent order (DCO) that would give the promoter the powers to build and operate its project.  He said that this should not be drafted just by lawyers at the last minute but should be a central part of the process with all disciplines contributing - and having the right lawyers was important too.  He mentioned the IPC decision to reject the application for a power line in Wales, largely due to inadequacies in the DCO.

He commended the IPC's outreach programme to explain the system to people local to proposed projects, but contrasted this with the IPC's reluctance to give advice on application preparation to promoters.

Finally, looking forward to the Localism Bill (note that it is no longer to be the Decentralisation and Localism Bill, but is still getting called that), he urged the government to remove some of the checks they had put in the Planning Act to respond to the 'democratic deficit' of decisions being made by the unelected IPC, given that the government would be doing the decision-making.  These were no longer necessary and their removal would mean the new regime being more of a one-stop shop as intended.

Finally, Richard Mayson of EDF spoke about experience of the regime in the case of EDF's proposed Hinkley Point C nuclear power station in Somerset.  He said that he supported the Planning Act regime because it gave predictability to the process, but was worried that the Localism Bill might take some of this away.

EDF have entered into a 'planning performance agreement' with the local authorities in the area to assist with the burden placed on them in dealing with such a large project, but he urged the government to expand its idea of allowing local authorities to keep business rates for renewable energy projects set out in the Local Growth White Paper.

He said that the Hinkley Point pre-application consultation had been carried out in two stages and they were currently digesting the 800 written and other reponses made during the second stage.  He said that more comments had been received on 'associated development' (i.e. things being built other than the nuclear power station itself) than the power station.  In an ICM poll of local people, 63% were in favour of the project and 17% against.  He said that despite there being 9000 pages of information at the second consultation stage, some had complained of insufficient information (and I would guess others complained of too much information).  He said that the application would be made in the new year.

If you are interested in hearing Sir Mike and Robbie speak about the new regime (with the promoter's slot being taken by Hector Pearson of National Grid this time), the CBI is holding a conference on the subject on 9 December at Centre Point in London.  For more details and how to apply to attend, see this flyer.

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187: Waste Water National Policy Statement (NPS) published today

16th November 2010

National Policy Statement latest

National Policy Statements (NPSs) are one of the cornerstones of the Planning Act regime.  Their twin purposes are to set out the need for each type of infrastructure and what impacts should be dealt with by applicants and considered by the Infrastructure Planning Commission (IPC) when applications are made.

There are due to be 12 NPSs - six on energy, three on transport and three on water and waste.  The six energy NPSs were published in draft a year ago, and revised drafts were published last month.  One of the transport NPSs - the Ports NPS - was published a year ago: a revised draft (or final version) is still awaited.  The other two transport NPSs - National Networks (road and rail) and Airports - have yet to be published.  Today marks the publication of the first water/waste NPS, and the first one that is the responsibility of the Department for the Environment, Food and Rural Affairs (Defra).

The Waste Water NPS (that's sewage to you and me) deals with one type of nationally significant infrastructure project (NSIP) in the Planning Act, namely waste water treatment plants that have a capacity of the equivalent of 500,000 people or more (never was the word 'capacity' used so euphemistically), or that are being enlarged by at least that amount.

Unusually it is also to cover a project that is not within the categories of NSIP in the Act, but for which the government has used its power to declare that it will use the Planning Act regime, namely the Thames Tunnel.  This is a large tunnel proposed to run under the Thames to deal with sewage overflows so that they go into the tunnel rather than the Thames.  There is a public consultation running on the Thames Tunnel until 20 December.  The government announced today that it will consult on a draft order early next year to amend the definitions in the Planning Act so that they include the Thames Tunnel.

Contents of the Waste Water NPS

Here is a link to the Waste Water NPS. It follows a similar format to the others already published, which is welcome and no doubt reflects the co-ordinating role of Communities and Local Government, the department responsible for planning.  Need is assessed, some other matters, and then potential impacts are set out.

On need, the NPS is quite categoric about what projects it expects come forward in the next five years - only two, and so for these, it says need has been demonstrated.

One is the Thames Tunnel, mentioned above, and the other is the replacement of the Deephams Sewage Treatment Works (STW) in Edmonton, north east London.  Thames Water will be the promoter of both projects.  By naming the projects, Defra has arguably introduced the additional consultation requirements to consult local authorities on local publicity that the Nuclear Power NPS is subject to.

It is possible for other projects to come forward and be 'needed', but only if the Environment Agency or Ofwat have concluded that they are needed.  Paragraph 2.5.3 suggests that both need to say so, but it should probably be either.

The NPS deals with good design and climate change adaptation (i.e. surviving climate change) and mitigation (i.e. reducing the risk of climate change), although the heading to 5.6 should probably mention the latter to be clear.

On impacts, the NPS expects the following to be assessed and mitigated by applicants and considered by the IPC:

* water quality and resources,
* odour,
* flood risk,
* biodiversity and geological conservation,
* coastal change,
* landscape and visual impact,
* land use (including open space, green infrastructure and green belt),
* noise and vibration,
* the historic environment,
* air quality and emissions,
* dust, artificial light, smoke, steam and insect infestation,
* traffic and transport,
* waste management,
* and socio-economic impacts.

Next steps

A public consultation is now running on the Waste Water NPS until 22 February 2011.  Details of how to respond to the consultation are here.

There will also be a period of Parliamentary scrutiny, the first step of which is for the Liaison Committee to decide whether a special committee should be set up to consider the NPS, or to refer it to the Environment, Food and Rural Affairs Committee (which it will most likely do).  The committee will then call for evidence and hear witnesses, as happened with the other NPSs earlier this year.  The written statement accompanying the Bill in Parliament says that the 'relevant date' is 17 May 2011, which means that the committee will have to report by 8 April 2011.

As with the other NPSs, there are to be public consultation events on the NPS.  These are to take place in London (given that's where both projects are) and possibly elsewhere.  I have asked for details when these become available.

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186: Consultation behaviour analysis as IPC clocks up 25 scoping opinions

12th November

The Infrastructure Planning Commission (IPC) is the new body that will decide applications for nationally significant infrastructure projects until April 2012.  It has been open in an advisory capacity since October last year, and applications for energy and transport projects have had to be made to it since March this year.  Although only two applications have been made to it so far, and of those one was not accepted for examination, one area where the IPC has been busy is that of giving scoping opinions.

A scoping opinion relates to environmental impact assessment (EIA).  A prospective promoter can ask the IPC what its assessment of environmental issues should cover, and the answer the IPC gives is a scoping opinion.  This is not to be confused with a screening opinion, which is the IPC's opinion as to whether the project needs EIA at all.

There are 50 live and forthcoming projects listed on the IPC website, and the IPC has just reached the milestone of issuing its 25th scoping opinion.  Thus half the projects have taken at least one formal step towards making an application.  It has only given one screening opinion to date, where it decided that the project did not need EIA, ironically the application for which was the one it later rejected.

To mark this milestone I have done a little analysis on the consultations the IPC carried out for its scoping opinions.  This is useful to promoters because they must consult the same organisations as part of their pre-application consultation.  There is a long list of prescribed organisations that must be consulted, some in every case and some only when the application covers their area of concern.

Overconsultation and under-response?

The IPC sent over 3000 letters and emails to consultees - an average of around 125 per consultation.  It received just over 400 meaningful responses back (i.e. ones that had more than 'no comment').  The large number of consultees is partly to do with the length of the list in Planning Act regulations, and partly due to the IPC's practice of erring on the side of caution in including optional consultees, particularly in the area of statutory utilities.  Does a 13% rate of meaningful responses (and a 25% response rate for any sort of response) mean that the consultation net is cast too widely?  Not necessarily, but it would make sense to review the operation of the consultation requirements of the Act every so often.

A few, often local authorities, asked for more time, but were not given it - there is a strict 42-day period within which the IPC must respond to a scoping opinion request, which it usually managed to achieve.  Some respondents asked to be taken off the consultation database, but of course they can't be since 'the database' is a statutory instrument.

Sword of Damocles effect?

What I found interesting was the wide range of reactions from the consultees, especially given that many of them are under threat following the publication of the PUblic Bodies Bill (see my colleague Paul Thompson's new blog on that subject).  Would the threat of joining the 'bonfire of the quangos' encourage them to respond or discourage them from doing so?

At one extreme, the Health and Safety Executive (which is listed in the Bill but not in the front line for the chop) responded to all 25 consultations, giving meaningful responses to 23 of them.  Silver medal goes to the Coal Authority (listed similarly), which responded to 24 consultations.  At the other extreme, Ofgem, the Rail Passengers Council (ditto) and the Commission for Sustainable Development (not in the Bill) did not even reply to any of the consultations.

The Commission for Rural Communities (which is in the front line for the chop) did not respond at all although was only consulted on English projects, but the Regional Development Agencies (also for the chop) responded on all but two occasions.  The prize for the most patient consultee must be gas utility ES Pipelines, who politely responded to 23 of the consultations, saying 'no comment' each time.  Many other utility companies have not responded at all, but may not have any equipment in the relevant areas.

Local authorities have been responding in increasing numbers, a total of 140 having made some sort of response so far.  The IPC has dealt with offshore projects not having a 'host' local authority (a gap in the Planning Act) by nominating the nearest authority/ies on the shore.  This does have the knock-on effect of having to consult a large number of neighbouring authorities, some quite far inland, however, (e.g. the London Borough of Redbridge about a windfarm off the coast of East Anglia), but it seems that there is little alternative.

This is one part of the new regime that has had the benefit of a fair amount of implementation.  Even then, the large body of consultees is taking a while to get used to it.

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185: First hint of Localism Bill contents in regional strategy judgment

10th November, 2010

The keenly-awaited Localism Bill will put the coalition government's stamp on the regime for authorising nationally significant infrastructure projects established by the Planning Act 2008.  Today, the government provided some more information on the contents of the Bill in response to losing a case in the High Court on regional spatial strategies.

Background to the Cala Homes case

On 27 May, the government wrote to local authorities to say that it intended to abolish regional strategies, and that the letter should be a material consideration in planning decisions.  A copy of the letter can be found here (although it doesn't seem to appear on the page of official letters on the CLG website).  Regional strategies contain planning policies covering each region of England that must be taken into account when deciding planning applications.

On 6 July, Eric Pickles MP, Secretary of State for Communities and Local Government, issued a written statement to say that regional strategies were being revoked.  (Note that although everyone tends to call them by their old name of Regional Spatial Strategies, the word spatial was dropped following the addition to them of economic strategies in accordance with the Local Democracy Economic Development and Construction Act 2009).  This was backed up with a letter by Steve Quartermain, the government's Chief Planner, to local authorities that day, which can be found here.

Since one of the main jobs of regional strategies was to set targets for the construction of new homes, the companies most aggrieved by this decision were housebuilders.  Accordingly, Cala Homes (South) Ltd launched proceedings in the High Court to have the decision quashed. The case was heard last month and today judgement was given in Cala Homes' favour.  The judgement can be found here. 

Cala Homes won on both the points it argued.  In essence, the judge decided that the ability to revoke individual regional strategies did not allow them all to be revoked at once, as that frustrated the intention of the legislation to have regional strategies generally in place.  Secondly, the government should also at least have considered whether revoking the regional strategies needed 'strategic environmental assessment' (the equivalent of environmental impact assessment for policies rather than projects).

Reaction and analysis

The government's reaction is in the form of a further written statement, which can be found here.  The statement bullishly says that 'the court's decision changes very little', for regional strategies will still be statutorily abolished by the Localism Bill that is due to be published later this month; the 27 May letter still stands, and the intention to abolish regional strategies should still be a material consideration in planning decisions.

Just in case there are any doubters, the government has said it is publishing in advance the clause from the Localism Bill that will revoke the regional strategies, and is also sending a further letter to local authorities today pointing out that the 27 May letter remains a material consideration in deciding planning applications.

The reaction leaves one or two gaps that need to be filled in by way of explanation.  The judgement has quashed the 6 July decision to revoke the regional strategies, but the 27 May letter expressing the intention to revoke them still stands.  The Localism Bill is not likely to be enacted until November 2011, and so until then, the regional strategies will remain alive, if not longer (since the provision to revoke them may not come into force immediately).

On the other hand, the 27 May letter was already having an effect on planning applications for new homes; indeed Cala Homes' application for houses in Winchester was refused on 14 June, before the regional strategies were revoked, citing the 27 May letter as the reason.  For that reason, then, the government seems to be right to say that the judgement will have little effect.  The 6 July statement should not have been made, but the 27 May letter was already having the desired effect. It remains to be seen whether today's further letter will itself be the subject of challenge.

What does this mean for infrastructure planning?

The Localism Bill is expected to make changes to the regime introduced by the Planning Act 2008 rather than making a wholesale substitution for it.  The Infrastructure Planning Commission (IPC) will be replaced by a Major Infrastructure Planning Unit of the Planning Inspectorate, decisions on nationally significant infrastructure projects will continue to be made by the government even when national policy statements (NPSs) are in place, and NPSs will be confirmed by a vote in Parliament.

The decision to reinstate regional strategies temporarily will not have a significant effect on infrastructure planning, since NPSs expressing the need for infrastructure sit above regional strategies and have a higher status in the Planning Act.  Nevertheless the government response to the judgement contains the useful information that (a) the Localism Bill is due to come out later this month and (b) it is expected to begin its passage through Parliament before Christmas, which I would interpret as meaning that the government will try to find time for it to have its second reading before the House rises on 21 December.

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184: IPC project update - questions in the House, answers from the IPC

8th November 2010

The Infrastructure Planning Commission (IPC) now has 54 projects on its books, although four of these are listed as 'withdrawn'.  Here is the latest news about those and others.

Rookery South Energy from Waste plant

This is the first and so far only application to have been accepted by the IPC.  The deadline for making representations on it is 19 November.

As with any large infrastructure project, this 'resource recovery facility' is not universally popular.  On Thursday Nadine Dorries, Conservative MP for Mid Bedfordshire, asked the Secretary of State for Environment, Food and Rural Affairs during question time to halt the registration process for this project, being promoted by Covanta Energy in her constituency.  Here is a link to the Hansard extract.

Her question referred to potential objectors having to read a '7000 page document' and that there are irregularities in the online registration process.  No further details are provided.  Needless to say, the Minister (Richard Benyon) gave a neutral reply, albeit referring to the 19 November deadline, so he had done his homework.

Maesgwyn power line

This was the first application to be made to the IPC, but they refused to accept it at the beginning of September.

It appears that promoter Western Power Distribution is gearing up to resubmit its application, if the IPC Register of Advice is anything to go by.  The correspondence between promoter Western Power Distribution, their lawyers Osborne Clarke, and the IPC suggests that adjustments are being made to the application documentation.  The IPC still seems unhappy with the proposed development consent order, however, and also has an issue with the land and works plans being inconsistent.

Hull biomass project

This is one of only five other projects to have started their formal pre-application process, but DONG Energy (that's Danish Oil and Natural Gas, before you ask) has decided to withdraw the proposal.  It was to have been for a biomass power station to generate just under 300MW of electricity (chosen presumably to avoid 'carbon capture readiness' obligations).   DONG has decided to concentrate on its core business of gas-fired power stations and offshore windfarms.

A21 highway upgrade

This project in Kent is marked as withdrawn, and is the only direct casualty of the comprehensive spending review amongst IPC projects.

Cheeseman's Green highway works

This project near Ashford in Kent was at one time going to be the first application to be made to the IPC.  Those were the days.  It disappeared for a while but has recently reappeared, marked as 'withdrawn'.  The project consisted of works to a trunk road to facilitate a housing development, which did not go ahead.  If the policy is now to list all projects that have ever appeared, we need to see the Waterloo offshore wind farm too.

Bryn Llywelyn onshore windfarm

This is the fourth and final forthcoming application that is listed as withdrawn.  The reason is that the applicant RES has decided to apply for a scheme that is less than the IPC threshold of 50MW of electricity generation, and hence is applying to the local authority instead, so the project is still in fact carrying on.

Other pre-application consultations

Four other projects have started their pre-application consultation: EDF's Hinkley Point nuclear power station, another Covanta Energy energy from waste plant near Merthyr Tydfil in Wales, Scottish and Southern Energy's wind farm at Nant y Moch in Wales and Lafarge Aggregates' railway diversion at Whitwell in Derbyshire.

I maintain an up-to-date list of live applications and all other current Planning Act links at blog entry number 127.

Other scoping opinions

One area where the IPC has been particularly active is the production of scoping opinions. Scoping opinions are advice from the IPC on what the promoter's Environmental Statement (ES) should contain.  No fewer than 24 of the projects on the IPC's list have now been supplied with scoping opinions, just under half of the total (only one being for an application now withdrawn).

In every case the applicant has supplied the IPC with a 'scoping report' of what it is planning to put in its ES, to give the IPC a head start, although this is technically optional.  Here is a link to the scoping reports and scoping opinions.

Expect a blog entry soon when they hit 25, analysing the consultation exercises that were undertaken.

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183: Fourth consultation launched on Planning Act supporting regulations

4th November 2010

On Monday the government issued a consultation on the fourth and final 'tranche' of regulations that are to support the Planning Act regime.  Like the first tranche, it consists of only one set of regulations, in fact, so more of a sliver.  Here is a link to the consultation document.  The first tranche dealt with National Policy Statements, the second with pre-application consultation and making applications, and the third with examination of applications and decisions on them.

These regulations deal with making changes to development consent orders (DCOs) after they are granted.  There are three levels of change possible: corrections (to obvious errors in the DCO), non-material changes and material changes.  The regulations flesh out the last two of these, the procedure for the first being covered in the Act itself.

There is no defined boundary between a 'non-material change' and a 'material change'.  You might wonder why you would want to make a non-material change, but the concept has a track record in the conventional planning system.  If some aspect of the permission was very precisely defined, you could not normally change it even a little, and this might be something that would constitute a non-material change, if it had no knock-on effects.

The proposed procedure for a non-material change is a simple one: apply to the Infrastructure Planning Commission (IPC), who publicises the making of the application.  The IPC then consults those who were consulted on the original application.  Presumably it takes the consultation responses into account and makes a decision, although this is not made explicit - the consultation document explains that to do so would be outside the regulation-making powers of the Act. Oh, and you have to pay the rather precise fee of £6345 for a non-material change to be made.

Applications for material changes can not only be made by the original applicant, but also a subsequent owner of the land concerned, or in limited circumstances the local authority, the Secretary of State, or without an application being made at all (i.e. the decision-making body can change the consent off its own bat in some cases).

The proposed procedure for a material change is pretty much equivalent to that for a full application under the Planning Act, SoCCs and all.  One saving is that any application documents that haven't changed do not need to be redrafted or resubmitted, and the fee is somewhat lower as a result.  There is also no timetable set out, so theoretically an application for a material change to an application could take longer than the original, as it currently stands, since applications under the Planning Act have to be decided within nine months of the 'preliminary meeting'.  To impose limits may again be considered to be outside the scope of regulation-making powers, but I would have thought it could fall under the heading of 'decision-making process'.

A couple of final points - the draft regulations that accompany the consultation document are entitled Infrastructure Planning (Miscellaneous Provisions) Regulations 2011.  That is rather similar to the already-existing Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010, which deals with other matters - perhaps a change of name might be in order?  Part 3 of the draft regulations has the same heading as part 2 - perhaps the word 'supplementary' could be added to the end of the former.  I will make a response along these lines.

As a warning to those preparing PDFs for publication on the internet, the consultation document shows up on google with the title 'The Empowerment Fund' - an example of 'metadata' left over from using another document.

Responses to the consultation should be made by 24 December 2010 - that the eight weeks given is shorter than the recommended 12 weeks is justified by the principles having already been consulted upon.  If made, the regulations are due to come into force on 6 April 2011.

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182: Welcome to NIPA - the National Infrastructure Planning Association

2nd November 2010



A new body aimed at promoting best practice in infrastructure planning and authorisation was launched at Bircham Dyson Bell's offices last night.  The 'National Infrastructure Planning Association' or NIPA will soon be open to membership to all those involved in the planning and authorisation of nationally significant infrastructure projects.  The title of this blog post is deliberately ambiguous to welcome NIPA to the world, and also to welcome you to NIPA.

It was standing room only as more than 100 people representing promoters, consultants, regulators, local authorities and other stakeholders heard Steve Norris, the inaugural Chair of NIPA, launch the association.

He said that the need for new infrastructure in the UK was increasingly urgent and yet the process for its authorisation still had room for improvement.  The Planning Act 2008 had established a new regime common to several sectors and would work best if those involved had a forum to share their experiences and develop best practice. With the forthcoming Localism Bill expected in around three weeks, which would make changes to the Planning Act regime, it was timely that NIPA was being created just as there was scope for making improvements to the regime that would benefit all those involved.  Among other things, promoters wanted as much certainty as possible in advance of making applications, and those affected by proposals wanted to be sure that their views would be able to be expressed at the appropriate time and would be taken into account.

Steve Norris stressed that NIPA was to be inclusive and would strive to have a balanced membership covering actual and prospective promoters of projects, organisations and individuals affected by projects, consultants of all disciplines working in the industry, and industry regulators.  NIPA would not express views for or against particular projects or technologies, but would strive to ensure that the process of making and considering applications was carried out as effectively as possible.  For example, a consultation is running on the revised drafts of the six energy national policy statements (NPSs).  It would not be appropriate for NIPA to respond to this consultation to say that it supported or opposed nuclear power, but it would be appropriate for it to respond with suggested changes intended to improve the NPSs' fitness for purpose.

Steve Norris was flanked by BDB partner Paul Thompson and myself, and Paul then ran through a suggested structure for NIPA on which Steve invited comments from the floor while I recorded the proceedings.  Many useful questions were asked and comments made, such as the pros and cons of working groups being set up to consider particular issues, the relationship between NIPA and other organisations in the field such as the Major Projects Association and Compulsory Purchase Association, and to what extent NIPA would be able to represent its members given their different interests.

A steering group has been established that will eventually represent all sectors and disciplines involved in infrastructure planning and authorisation.  The steering group had its first meeting earlier yesterday and will take on the commments made at the launch to develop the membership and governance structures and business plan for the association, soon to be issued for wider consultation.  If you were not at last night's meeting and would like to be included, please let me know.  The steering group will eventually morph into whatever permanent structure is decided upon.

NIPA will have its own website at www.nipa.org.uk (not to be confused with that of the National Institute of Pension Administrators in the US, who have www.nipa.org).  Use of the website and email will be the order of the day with NIPA to ensure it is as responsive and efficiently run as possible.

I hope that you agree that the establishment of NIPA is a good idea and I look forward to it becoming established as a major voice in infrastructure planning and authorisation.  I will keep you posted on NIPA as it develops.

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181: Local Growth White Paper - counties to lose planning functions?

29th October 2010

Yesterday the government published a white paper on 'local growth'.  It can be found here. It is a publication by Vince Cable's department (Business, Innovation and Skills), with a foreword by Nick Clegg, so something of a Lib Dem production.

Many planning and investment powers are to be devolved downwards, but some appear to be being centralised.

Local enterprise partnerships

The government had previously invited bids from groups of local authorities and other local organisations to form 'local enterprise partnerships' (LEPs) to fill the gap left by the proposed abolition of Regional Development Agencies.  I thought 56 bids had been made, although the white paper says 62.  In any event, 24 of these have been given the green light.  Here is a map of which parts of the country are covered by one (and sometimes two) LEPs.

Map of successful LEPs

LEPs won't get any government money, but they will take on many of the roles of the Regional Development Agencies (RDAs), which are to be wound down by March 2012.  Annex B to the white paper sets out how the roles currently performed by RDAs will be transferred - many going to LEPs but some returning to the government.

The white paper gives more details about the Regional Growth Fund, heralded in the budget, last week's comprehensive spending review and this week's national infrastructure plan.  The fund is now open for bids until 21 January 2011, but you have to bid for at least £1million.  Guidance and an application form can be found on the BIS website.

Planning

When it comes to planning, there is to be a tier of development planning below the local development plan - the neighbourhood plan.  It is not clear yet how a neighbourhood is defined, but it will have some plan-making powers.  Plan-making by local authorities is to be simplified, something that will be universally welcomed if that's what really happens - the previous changes were supposed to make a more flexible and responsive system.

Although local communities have a 'desire to see new homes', the government is introducing a New Homes Bonus to incentivise local authorities to buiid new homes by matching council tax receipts from them for six years.  There will also be business incentives where councils can keep business rates in some circumstances (instead of them going into a national pool, as at present), such as when renewable energy schemes are built in their areas.

Hidden away in the white paper it appears to say that minerals and waste planning will be taken from county councils (their only current planning functions) and given to the body that is replacing the Infrastructure Planning Commission (IPC) - the Major Infrastructure Planning Unit (MIPU), to be part of the Planning Inspectorate.  That would be surprising and may not be what is meant, but here is the text of paragraph 3.23:

"[The fact that some decisions need to be taken at national level] is why, for example, nationally important infrastructure projects (such as large scale wind farms and power plants), the supply of aggregate minerals and planning for waste will become the responsibility of the Planning Inspectorate's recently announced Major Infrastructure Planning Unit."

The Localism Bill will contain a statutory duty on local authorities and infrastructure providers to co-operate with each other, and the philosophy of pre-application consultation in the Planning Act will be extended to all large-scale developments.  The Bill will also 'fold' the London Development Agency (LDA) into the Greater London Authority (GLA).  The abolition of RDAs, however, is in the Public Bodies Bill, published this morning, and the creation of LEPs will not require legislation at all.

Unspecified legislation will be needed to set up Tax Increment Financing (TIF), and there is a mini-consultation on this subject tucked away on page 33 of the white paper, ending on 1 December.

A statutory presumption that all planning applications for sustainable development will be granted (presumably instead of the current presumption in favour of applications that accord with the development plan) is to be introduced.

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180: National Infrastructure Plan published

27th October 2010

National Infrastructure Plan

On Monday, the government published the first edition of a 'National Infrastructure Plan'.  Hosted as it is on the Treasury website and produced jointly by the Treasury and Infrastructure UK, this plan focuses on investment in infrastructure rather than infrastructure planning. Nevertheless it contains some useful information about the latter.

The authorisation regime under the Planning Act 2008 covers energy, transport, water and waste projects.  The National Infrastructure Plan (NIP), covers a wider set of categories, also dealing with digital communications (which are part of infrastructure planning in Scotland) and science, research and innovation, which are less obviously related to infrastructure, but perhaps there is nowhere else to put them.

The NIP draws heavily on last week's report on the Comprehensive Spending Review, which it says for the first time assessed the infrastructure that the nation needs.  I would have thought that the November 2009 draft National Policy Statements went some way towards that nearly a year ago, albeit only in the fields of energy and ports.

Infrastructure investment will be considered in a three-part hierarchy, which is not such good news for large new projects.  The first priority is the maintenance and smarter use of existing assets, then tackling stress points to improve resilience and capacity of networks, and only then are 'transformational large scale projects' considered.

There will be some sale of assets to help fund the Green Investment Bank - part of the radio spectrum, the High Speed 1 railway, Royal Mail, and possibly NATS (air traffic control) and student loans (to be decided in next year's budget).

The NIP states that investment by the private sector is to be preferred, but government intervention is necessary when there are high social or environmental costs involved, high risks, and yet the infrastructure is in the national interest.  By social and environmental costs presumably it does not mean that the projects would be socially or environmentally damaging, but would cost a lot to prevent such damage.

There will be several new(ly packaged) sources of funding available.  The Green Investment Bank will be capitalised with £1bn and more from the privatisations mentioned above, a Regional Growth Fund will be given £1bn rising to £1.3bn, and local transport schemes will have two funding streams available (see below). Local growth will be dealt with in a forthcoming white paper, and tax incremental financing (TIF) is to be introduced (borrowing against future increases in rates caused by the existence of the project).

The NIP is fairly positive about the Planning Act regime - instead of talk of scrapping the Infrastructure Planning Commission (IPC), the tone is of 'building on' the regime by replacing the IPC with the Major Infrastructure Planning Unit.  There is some delay, though - the revised route map on the remaining roll-out of the regime is now expected 'by the end of 2010' instead of 'later in the summer', and the Waste Water National Policy Statement (NPS) has been put back a year to autumn 2011.  The other NPSs are not mentioned.

Area-specific measures

In the field of energy, the priorities will be to improve energy efficiency, build nuclear power stations and offshore wind farms, prioritise biomass, carbon capture and storage, solid recovered fuels, anaerobic digestion, and microgeneration and renewable heat projects; smart metering, greater electricity connection with Ireland and mainland Europe, and private sector investment in LNG terminals and gas storage.

In the field of transport, the priorities will be removing bottlenecks, mainly on the road network, managing existing assets better such as motorways and airports, improving efficiency in the Highways Agency and rail industry, and developing ports; decarbonisation of cars, rail projects; £1.5bn for local authority major transport schemes (£900m on new schemes, £600m on committed schemes); £560m for smaller local authority projects outside London (the Local Sustainable Transport Fund), and a reduction of grant streams from 26 to four.

In the field of digital communications, the priority will be to encourage private sector investement in superfast broadband and high speed mobile broadband.

In the field of water and waste, the priorities are encouraging investment in assets by water and sewerage companies, reducing the threat of flooding and coastal erosion, reducing waste through more sustainable products and materials, diverting biodegradable waste from landfill, and harnessing energy from waste.
To-do list

There is a huge list of next steps and forthcoming publications throughout the document, summarised on pages 39-41.  Here is a summary by date.

Late 2010

* Consultation on reform of electricity markets
* Details of process to replace the IPC
* Updated timetable for remaining National Policy Statements
* Local Growth White Paper
* Introduction of Localism Bill, which will 'radically reboot' the planning system and introduce a national planning framework
* Government response to Penfold review of non-planning consents
* Infrastructure UK report on why infrastructure is more expensive in the UK than elsewhere
* Common set of principles of economic regulation published
* Report on low carbon construction
* Proposals for reform of climage change levy
* Consultation on flooding and coastal erosion strategy
* National Broadband Strategy
* Electricity market reform

Spring 2011

* Design and testing for a Green Investment Bank
* Report on extending 'regulatory asset base' model of project financing (where costs recovered from consumers)
* BIS report on barriers to innovation and infrastructure supply
* Treasury programme on improving economic infrastructure data
* Green Book Supplementary Guidance no assessing economic infrastructure
* Engineering and Interdependency Expert Group to report on systemic risks and opportunities in infrastructure
* Expert Group will also address cyber security and climate change adaptation
* McNulty review of rail industry efficiency to be presented to the government
* Complete review of Ofwat

Summer 2011

* Review whether further cross-sectoral reform of economic regulation is required
* Levels of 2022-27 carbon budget
* Review of government waste policy
* Complete review of Ofgem
* Water White Paper

Late 2011

* Annual energy statement
* Updated version of the National Infrastructure Plan
* Publication of common set of planning assumptions (e.g. population growth, climate change effects)
* Publication of waste water NPS

2012

* National Climate Change Adaptation Plan
* Climate Change Risk Assessment

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179: Analysis of original consultation and revised national policy statements

22nd October 2010

The government launched a second round of consultation on the six energy National Policy Statements (NPSs) this week.  It has also published responses and information about the first round of consultation, which makes interersting reading.

Responses to previous consultation

Consultation on the original draft National Policy Statements took place between November 2009 and February 2010.  There is a document reporting on the statistics for the original consultation, which can be found here.

The percentage of answers given on each NPS was not surprising:

* EN-6 - nuclear power: 53%
* EN-5 - electricity pylons: 16%
* EN-1 - overarching energy: 13%
* EN-3 - renewable energy: 8%
* EN-2 - fossil fuels: 6%
* EN-5 - gas and oil infrastructure: 4%

Within EN-6, consultees were asked whether they agreed that of eleven sites nominated as potential new nuclear power stations, ten were suitable and one (Dungeness) was not.  The numbers of responses on each site were interesting: Kirksanton far outweighed all the others, while the other site that was dropped in this new consultation round (Braystones) did not get that many responses.

* Kirksanton - 1083 - more against than in favour
* Dungeness - 352 - mostly 'unclear' whether for or against (many letters were actually against the expansion of nearby Lydd Airport)
* Oldbury - 206 - more against
* Hinkley Point - 131 - more against
* Bradwell - 100 - more against
* Sellafield - 93 - more in favour
* Braystones - 92 - more against
* Wylfa - 83 - more in favour
* Sizewell - 77 - more in favour
* Heysham - 69 - more in favour
* Hartlepool - 68 - more in favour

The report says that there were 130 responses from local authorities, but by my reckoning that must include parish and town councils, because only about 40 appear to have been from district, county and unitary authorities, about 10% of the total.

Government response to consultation

The government has issued two response documents - one for the response the the public consultation and one to the Parliamentary scrutiny of the NPSs.

The public response document can be found here.  The government has gone into careful detail on the responses to the public consultation in its 300-page report.  I have not read all the responses, but it appears to deal with everything that was raised.

I can't resist mentioning that I've found a couple of misprints - do I get a prize?  At paragraph 1.101 it uses the word 'intension' and at paragraph 1.105 it refers to 'EN-)'.  There's something a bit wrong with paragraph 6.12 as well.

I'm not sure that I agree with the statement at paragraph 1.32 that 'onshore' electricity generation includes installations in estuaries.  The Planning Act defines 'offshore' as 'in waters in or adjacent to England and Wales ...'.  Surely the Severn Estuary is 'water adjacent to England and Wales'.  If the document was right, it would lower the threshold for projects in estuaries to come within the Planning Act regime from 100MW to 50MW.

Paragraph 1.121 says that water or rail transport should be used in preference to road in EN-1, but EN-2 has been changed to prefer water-borne transport (only) for fuel and residues.  I'm not sure why - I expect the Rail Freight Group will have something to say about that.

The Parliamentary response document can be found here.  The government has addressed each of the Commons select committee's thirty recommendations and has responded to what it considers were the main issues raised in the Grand Committee debates in the House of Lords, and also the five motions that were debated on the floor of the House albeit withdrawn following the debate.

The government resists calls to favour one electricity generation type over another, have a spatial element in EN-1 to EN-5 (i.e. saying where development should go) and also addi a requirement for the IPC to assess the carbon output of any proposed project.  CO2 pipelines for carbon capture and storage are declared to be outside the scope of the relevant NPS (EN-4) (but still within the Planning Act regime - the difference being that the government will make decisions on applications rather than the IPC).  A 'road map' for the implementation of CO2 pipelines will be consulted upon later this year and included in EN-4 at a later date.

The response to recommendation 17 says that the NPS has been revised so that on-site 'temporary' storage of nuclear waste is not stated to be for as long as 160 years (although if as it says the permanent storage facility is not ready until 2130 and the first new power station comes online in 2018, that would be 112 years of onsite storage).  The report also states that the long-term geological storage project is likely itself to be a project that comes under the Planning Act.

The possibility of having joint (i.e. Commons and Lords) consideration of the revised NPSs is left open.  This will be for Parliament to decide, although would require a change to standing orders.

The revised National Policy Statements

I have already set out the main changes made to the NPSs, their appraisals of sustainability and their Habitats Regulations assessments, using the government's handy summaries.  Here are one or two additional points that aren't mentioned in the summaries.

The need for energy infrastructure is updgraded in EN-1 from 'significant' to 'urgent' (I think we are now at defcon 2).

The main reasons that Kirksanton and Braystones were dropped from the list of nuclear sites were that they were considered not to be capable of development before 2025, but perhaps more importantly the need for power stations there was not considered to be enough to outweigh the effect on the Lake District National Park of building them.

The NPSs look further forward than they did before - to 2050 - by when in order to 'decarbonise' energy, electricity generation will probably need to triple from current levels.

The NPSs have not actually changed that much - the main changes are to the Appraisals of Sustainability, where the way alternatives have been dealt with has been changed significantly.  This issue was the main complaint of many environmental organisations, and the changes will go a long way towards addressing their concerns (although they still probably won't like the conclusions reached).
Going forward

The public consultation now runs until 24 January 2011.  Chris Huhne MP has said that the 'relevant date' for Parliamentary scrutiny is 31 January 2011, a week later.  However according to the standing orders of the House of Commons, the government must be provided with any reports of select committees 39 days before that date, which in this case is 22 December 2010.  The Energy and Climate Change Select Committee thus has two months to consider the drafts and produce a report.  At least it only need focus on the changes made to the NPSs (and presumably the refusal to change the matters it wanted to be changed).

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178: Comprehensive spending review - infrastructure projects saved and cut

20th October 2010

Today the Chancellor of the Exchequer, George Osborne MP, announced the results of the comprehensive spending review (CSR).  The formal report setting out the results of the review is here.

Of course the document tends to list what projects have been saved, and only by implication can one deduce that the projects that were in the pipeline but aren't on the list have been cut.  The departmental press releases give some more information on cuts, however - report and links below.

Transport

Press release

Going ahead (projects with a * are on the Infrastructure Planning Commission list of nationally significant infrastructure projects):

* Major improvements to the East Coast Main Line
* Station upgrade at Birmingham New Street
* Network improvements in Yorkshire and around Manchester and Barry to Cardiff
* Making the A11 fully dual carriageway from M11 to Norwich
* Improving the M4/M5 junction
* Congestion relief on the M1 between junctions 28 and 31 (*)
* Route extension and capacity increases on the Midland Metro
* Upgrades to the Tyne & Wear Metro
* Construction of the Mersey Gateway Bridge
* Crossrail
* £2.1bn on upgrades of Birmingham New Street, London King's Cross, Reading and Gatwick Airport stations
* Rail freight funding to continue for Felixstowe-Nuneaton and Southampton-West Coast Main Line
* £750m and legislation to deliver a high speed rail network by 2015
* Two new lines for the Nottingham tram

Cut or still under consideration:

* Dartford Crossing not to be sold, nor upgrade funded
* Road schemes cancelled: one on the A14, three on the A21 (*), two on the A19, one on the A1, and one on the A47
* Other road schemes still under consideration
* £185m savings from Network Rail
* Decision to be made later on inter-city train replacement, Thameslink and HLOS rolling stock
* Six street lighting PFI projects cancelled

Energy

Press release

Going ahead:

* Up to £1bn on first commercial scale carbon capture and storage (CCS) demonstration project
* £200m for manufacturing facilities at port sites, technology to support offshore wind power and energy efficiency for buildings
* £1bn to capitalise a UK-wide Green Investment Bank

Cut or still under consideration:

* Consultation on reform of climate change levy next month that will lead to decision on funding other CCS projects
* National Nuclear Centre of Excellence funding cut
* Reduction in Warm Front heating and insulation grant scheme
* Reduction in Feed-In Tariffs for microgeneration
* Funding for Carbon Trust, Energy Saving Trust, Coal Authority and Ofgem under review

Water and waste

Press release

Going ahead:

* £2bn to be spent on flood and coastal defences in the next four years
* 11 waste PFI projects saved

Cut:

* Funding cut to seven waste PFI projects
* Funding cut to 53 quangos
* British Waterways Board turned into a charity

Planning and local authority

Web page

News:

* Local Growth White Paper to be published soon setting out detail on LEPs, planning reform, incentives and regional economic development policy
* £1.4bn Regional Growth Fund to be established; Lord Heseltine will chair panel to consider bids for projects

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177: Second National Policy Statement consultation launched

18th October, 2010

The Department for Energy and Climate Change (DECC) has launched a second round of consultation on the six energy National Policy Statements (NPSs) this morning.  The consultation closes on 24 January 2011.

The changes reported last week after the consultation website inadvertently became visible for a while have come to pass.  Here are links to the documents and a summary of the changes.  In most cases, the changes to the NPSs reflect updates already made to policies since the first drafts were published in November 2009.  The change that made headlines last week, however, the dropping of two of the ten proposed sites for nuclear power stations, is new and is a response to the consultation on the original draft NPSs, so it was a genuine consultation.

The Appraisals of Sustainability have been rewritten to answer the question “what difference would it make to build a new generation of energy infrastructure in accordance with the NPSs?”, rather than making a comparison between implementing the same policies with and without an NPS, as the old appraisals did.  More alternatives have also been considered.

Chris Huhne MP, Secretary of State for Energy and Climate Change, has announced that the relevant period (for Parliamentary scrutiny) will end on 31 January 2011.  According to Parliamentary standing orders, that means that the relevant Select Committee must report to the government by 39 days before that, i.e. 23 December 2010.

He also announced that the government would not be taking forward any of the five schemes for harnessing tidal energy in the Severn Estuary and will not revisiit this issue for at least five years.

Public events will take place in Bristol on the morning of 29 November, Manchester on the afternoon of 30 November, and London on the afternoon of 2 December (not 1 December as previously advised).

General documents

* Chris Huhne statement to Parliament
* Consultation document
* Government response to public consultation
* Government response to Parliamentary scrutiny
* responses to original consultation

Overarching Energy NPS EN-1

The relevant documents are here:

* the original EN-1,
* the revised EN-1,
* the original appraisal of sustainability (AoS) for EN-1 to EN-5,
* the revised AoS for EN-1, annexes, non-technical summary,
* the original Habitats Regulations Assessment (HRA) for EN-1 to EN-5, and
* the revised HRA for EN-1 to EN-5.

The main changes are as follows:

* the need argument in EN-1 has been updated with the Pathways to 2050 analysis carried out by DECC, which was published on 27 July and can be found here;
* the need for energy infrastructure has been upgraded from 'significant' to 'urgent';
* policy on carbon capture and storage (CCS) has been updated to include the proposed four demonstration projects, on which a 'market sounding' was launched on 8 July that is here;
* assessment of exhaust stacks and cooling towers has been moved to EN-1 from EN-2 and EN-3; and
* the section on the historic environment has been updated to reflect the updated Planning Policy Statement (PPS) 5.

Fossil fuels NPS EN-2

The relevant documents are here:

* the original EN-2,
* the revised EN-2,
* the original AoS for EN-1 to EN-5,
* the revised AoS for EN-2 and non-technical summary,
* the original HRA for EN-1 to EN-5, and
* the revised HRA for EN-1 to EN-5.

The main changes are as follows:

* the assessment of exhaust stacks and cooling towers has been moved to EN-1; and
* water-borne transport is to be preferred over other modes of transporting materials.

Renewables NPS EN-3

The relevant documents are here:

* the original EN-3,
* the revised EN-3,
* the original AoS for EN-1 to EN-5,
* the revised AoS for EN-3 and non-technical summary,
* the original HRA for EN-1 to EN-5, and
* the revised HRA for EN-1 to EN-5.

The main changes are as follows:

* there is an additional section on biomass sustainability (which may need further updating due to a forthcoming consultation); and
* an explanation is given as to how offshore windfarms could affect the Green Belt.

Oil and Gas Infrastructure NPS EN-4

The relevant documents are here:

* the original EN-4,
* the revised EN-4,
* the original AoS for EN-1 to EN-5,
* the revised AoS for EN-4 and non-technical summary,
* the original HRA for EN-1 to EN-5, and
* the revised HRA for EN-1 to EN-5.

The main changes are as follows:

* CO2 pipelines are explicity excluded;
* there is additional material on the safety of shipping LNG;
* there is more on the geological assessment of salt caverns for gas storage; and
* flaring and venting of gas has been added as a new impact to be assessed by project promoters.

Energy Networks NPS EN-5

The relevant documents are here:

* the original EN-5,
* the revised EN-5,
* the original AoS for EN-1 to EN-5,
* the revised AoS for EN-5 and non-technical summary,
* the original HRA for EN-1 to EN-5, and
* the revised HRA for EN-1 to EN-5.

The main changes are as follows:

* the policy on when lines should be placed underground has been clarified; and
* there is more information on bird strike.

Nuclear Power NPS EN-6

The relevant documents are here:

* the original EN-6,
* the revised EN-6 and its annexes,
* the original AoS for EN-6 - main, waste and one for each site,
* the revised AoS for EN-6, appendices and non-technical summary,
* the original HRA for EN-6 - main, waste and one for each site, and
* the revised HRA for EN-6 and non-technical summary.

The main changes are as follows:

* two sites have been dropped as suitable for new nuclear power stations - Kirksanton and Braystones in Cumbria;
* the policy is clarified to say that not all remaining eight sites are necessarily needed;
* the IPC may consider on-site storage of radioactive waste;
* there is more information on how applications for sites other than the eight identified will be handled;
* there is more text on regulatory justification; and
* some impacts have been removed if they are for the regulator rather than the IPC to consider.

The government has also approved two designs for new nuclear power stations - the AP100 from Westinghouse and an EPR from Areva.  There is more too on requirements for decomissioning and on what 'no subsidy for nuclear' means - see this press release.

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176: Consultation on revised National Policy Statements expected on Monday

15th October 2010

Six National Policy Statements (NPSs) in the field of energy are expected to be launched for a second round of consultation on Monday.  These NPSs are half of a suite of twelve such statements, which are to form the basis for considering applications for nationally significant infrastructure projects under the Planning Act regime.  The two main functions they perform are to set out the need for the infrastrucutre, and to identify impacts that the promoters should assess and the decision-maker should consider.

The six NPSs are: Overarching Energy (EN-1); fossil fuel electricity generation (EN-2); renewable electricity generation (EN-3); gas and oil infrastructure (EN-4); overhead electric lines (EN-5) and nuclear power (EN-6).

The government announced that there would be a second round of consultation back in July (press release).  Earlier this week there was an unplanned release of the new consultation website (see previous blog entry 175 below), but the official start of the re-consultation is now imminent.

On 9 November 2009, seven NPSs were issued in draft for the first time, six in the field of energy.  That consultation lasted until 22 February this year, and more than 3000 responses were received.  These are still visible on the DECC website, but that's another story.

On 18 October 2010, revised drafts of the six energy NPSs will be published and a new round of consultation will open until 24 January 2011.  This is a week less than before, but is still a generous 14 weeks - albeit including Christmas - compared with the Cabinet Office recommendation of 12 weeks.  Given that responses to the further consultation are urged to be on the changes to the NPSs rather than the content that did not change (optimistically, perhaps), that should be ample time.  And you have five days' more notice of the changes, following the previous blog entry!

Other scrutiny

Overlapping with the original public consultation, between 6 January and 10 February, the Energy and Climate Change Select Committee of the House of Commons held ten evidence sessions into the six draft NPSs.  Witnesses from a wide range of interests, from energy companies to community groups opposed to nuclear power stations in their areas appeared before the committee, and in March the committee produced a report of its findings, which can be found here, summarised and analysed in this blog entry.

It is not yet known whether the Select Committee will conduct any further evidence sessions into the revised NPSs, but I would think that it would be unlikely to pass up the opportunity.  The Planning Act requires Parliamentary scrutiny of the original draft, but didn't contemplate that revised drafts would not be issued for a year and would be the property of a new government of a different political persuasion, and so is silent on scrutiny of revised drafts.

The House of Lords, not having departmental select committees, held three debates in its Grand Committee on EN-1, EN-2 to 5 and EN-6, and then a debate on the floor of the House.

According to the consultation website prematurely released and then unreleased earlier this week, the government will publish two response documents - one to the public consultation, and one to the report of the Energy and Climate Change Select Committee and the Lords Grand Committee debates.  There will also be an Apprasial of Sustainability and Habitats Regulations Assessment for each NPS, an Appraisal of Sustainability Monitoring Strategy (which is new) and a rivised Ijmpact Assessment (of adiministrative costs).

The government is planning for legal challenges to be made to the adoption ('designation') of the energy NPSs, and is not expecting them to be finally in place until later next year.  It will be interesting to see whether any more consultation of local authorities has taken place or will take place on publicising the eight remaining sites named in the Nuclear Power NPS, as this was a vulnerability that the original draft suffered from.

The other NPSs

It was also announced at a conference this week that progress would be made on the seventh NPS that was issued in draft last November, the Ports NPS, following the comprehensive spending review that is to be revealed on Wednesday next week.  Whether that will be a second round of consultation or not remains to be seen - there were only around 150 responses to it.

The timetable for the issue of the remaining five NPSs - on national networks (roads and railways), airports, waste water, hazardous waste and water supply - was due to be published 'later in the summer' but has yet to emerge.  In a separate announcement, the Waste Water NPS was said to be planned for issue in draft this autumn.

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175: Blog exclusive - government to drop two nuclear power stations from NPS reconsultation

13th October 2010

As previously reported, the Department of Energy and Climate Change (DECC) is about to launch a second round of consultation on the six draft energy National Policy Statements (NPSs).

Unfortunately for DECC, its website developers have accidentally published the consultation website while it is still under development and it is quite revealing.

The news that will create headlines is that they are not only refusing to add Dungeness to the list of possible new nuclear power stations, but they are dropping two of the ten sites that were previously listed - Kirksanton and Braystones in Cumbria.  There are also changes to the text of the NPS on need and radioactive waste - see below.

The documents explaining this have yet to be loaded, so we are left with the summary that 'Braystones has been found to be not suitable for the deployment of a new nuclear power station by 2025. Therefore, Braystones is not within the revised draft Nuclear NPS.', and the same for Kirksanton.  RWE Npower nominated both sites when invited to do so back in April 2009.

The political background of course is that the Liberal Democrat Secretary of State for Energy and Climate Change, Chris Huhne MP has committed to delivering new nuclear power as part of the government's coalation agreement, despite his party having a policy of opposing it.

Other revelations

The consultation will close on 24 January 2011.  There will be public meetings in Bristol on 24th November, Manchester on 29th November, and London on 1st December. Neither Bristol nor Manchester had meetings the first time round, although London's will be a year less a day after its first consultation round equivalent.

The changes to each NPS are listed in brief, although the revised text has not been uploaded yet.

For the Overarching Energy NPS EN-1, the need argument has been updated with the recent 'Pathways to 2050' analysis.  Policy on carbon capture and storage demonstration projects is included.  Assessing exhaust stacks and cooling towers has been moved to EN-1 from EN-2 and EN-3.  The section on the historic environment has been revised to reflect the updated PPS5.

The Fossil Fuels NPS, EN-2 has been updated to say that water-borne transport for fuel and residues should be preferred over other modes.  What about rail-borne?

The Renewable Energy NPS, EN-3 has updated sections on biomass sustainability (which may need to be further updated given a current consultation) and that offshore windfarms might affect the green belt.

The revised Oil and Gas Infrastructure NPS EN-4 states that it does not cover CO2 pipelines, more on safety of shipping LNG (see previous blog entry, where I speculated whether this would be covered), more on geological assessment of salt caverns, and a new impact has been added that should be assessed, namely flaring and venting of gas.

Undergrounding policy is to be 'clarified' in the revised Electricity Networks NPS, EN-5, and there will be more on bird strike.

Most changes have occurred to the Nuclear Power NPS, EN-6.  It appears that the IPC may have a role in considering radioactive waste, if included in an application.  There is more on how applications would be dealt with for sites other than the eight now included.  The need text has been clarified so as not to imply that all eight sites are needed. There is new text on 'regulatory justification'.  Some impacts have been removed from the NPS where they are for the regulator rather than the IPC to consider.

Finally, all 3043 responses to the original consultation have been uploaded, although by the name of the respondent rather than their orgnisations.

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174: Focus on liquefied natural gas (LNG) facilities

12th October 2010

Liquefied Natural Gas (LNG) facilities are one of the sixteen types of project that if they are above a specified size, must be authorised using the regime under the Planning Act 2008.  The Act uses the oxymoron 'liquid natural gas' - perhaps because liquefy is one of the most commonly misspelt words in English.

LNG is natural gas (mainly methane) that has been cooled to -162 degrees C so that it is in liquid form.  This makes it much easier to transport by sea, since it is about 1/600th of the volume of natural gas at ordinary temperatures, although obviously the vessel needs to have serious refrigeration on board.  Thus where a country needs more gas than it produces and the capacity of any international pipelines is insufficient, this is an alternative method of supplyihg gas.  Coastal facilities need to be provided to accept LNG vessels, store and 'regasify' the LNG and inject it into the gas transmission system.

The UK is one such country - its own reserves in the North Sea have been declining and it became a net gas importer at the end of 2004.  There are international pipelines from Balgzand in the Netherlands and Zeebrugge in Belgium to Bacton in Norfolk (the BBL Pipeline and the Interconnector, respectively) and from Myhamna in Norway to Easington in Humberside (the Langeled Pipeline), allowing the import of gas to the UK.  Dmoestic production plus the capacities of these pipelines will not be sufficient on their own to meet the UK's future gas needs.

Facilities in the UK

Accordingly, LNG facilities have been built in the UK over the last five years.  The first, Grain LNG in north Kent, has been operational since July 2005.  A second phase came into operation  last year and a third and final phase is to be completed imminently.  This will bring the facility's capacity up to 57 million cubic metres per day (mcm/d).  By way of comparison, the day of highest demand for gas in the UK was 17 December 2007, when 419 mcm were required.  Phase I is operated by BP and Algerian company Sonatrach, Phase II by Centrica, Sonatrach and French company GDF, and Phase III will be operated by E.on, Centrica and Spanish company Iberdrola.

The second UK facility to open was at Teesport on Teesside in February 2007.  This facility is different from the others as the LNG is regasified while it is still on the import vessel rather than on land.  It is operated by US company Excelerate and has a capacity of 17 mcm/d.

Third and fourth are two facilities in Milford Haven in Pembrokeshire, known as Dragon and South Hook.  These have been operating since September and October 2009 respectively.  The first is operated by BP, Malaysian company Petronas and Dutch company 4Gas, and the second by Qatar Petroleum, Exxon Mobil and Total.  They both have a capacity of 30 mcm/d.  Note that the Planning Act does not extend to Wales for LNG facilities, however, and so any further permissions in Wales will continue to be made by ordinary planning applications there.

Policy and authorisation regime

Government policy on larger LNG facilities is contained in the draft National Policy Statement (NPS) on oil and gas infrastructure, EN-4.  This doesn't have a great deal to say about LNG facilities, but mentions that when considering where to locate them, applicants should consider the availability of a deepwater jetty, sufficient land for development, proximity to dwellings, workplaces and other buildings used by the public, as well as proximity to the National (gas) Transmission System.  Special factors that should be assessed and mitigated by the applicant and considered by the Infrastructure Planning Commission (IPC) are noise and vibration, landscape and visual, and dredging.  For a link to EN-4, click here.

Discussion of LNG in the context of the Planning Act made it to a debate in the House of Lords on the energy NPSs in February this year.  Lord Crickhowell expressed misgivings about the co-ordination between the port authority and the Health and safety Executive in dealing with the offshore/onshore interface for LNG imports at Milford Haven.  The debate can be found here.

The energy national policy statements are expected to be reissued for further consultation this month; it will be interesting to see whether Lord Crickhowell's comments have had any effect.

The most likely next LNG terminal is proposed at Canvey Island in Essex.  A planning application was originally refused in 2006 and appealed, but the appeal was withdrawn.  If the application exceeds the Planning Act threshold of 43 mcm of storage or a flow rate of 4.5 mcm/d, then it will have to be made using the new regime.  Canvey Island already deals in LPG, liquefied petroleum gas.  This is not to be confused with LNG as it (a) is not methane but propane and butane, and (b) is generally liquefied by pressurising it rather than cooling it.

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173: First IPC objection period starts for energy from waste project

7th October 2010

Only yesterday I was writing that after nearly six weeks the promoter of the first application accepted by the Infrastructure Planning Commission (IPC) had not yet advertised that fact and started the objection period running.  I cannot claim to have spurred them into action as they must have submitted copy to the Times before yesterday, but coincidentally today they have now done so.

The first application for a nationally significant infrastructure project (NSIP) made to the IPC - for a 65MW energy from waste project in Bedfordshire, known as the Rookery South Resource Recovery Facility (RRF), being promoted by Covanta Energy - has started its objection period today, by publishing notices that the application has been accepted.

These notices come exactly six weeks after the IPC accepted the application.  As I mentioned yesterday, there is no particular time limit for this stage, and promoters will be balancing moving quickly with being ready to relinquish control of the timetable to the IPC and the provisions of the Planning Act.  The six weeks may appear to coincide with a six-week legal challenge period set out in the Act, but this only applies to refusal to accept an application rather than acceptance of it.

Finally, after seven months of waiting, the full IPC process can now swing into action for the first time.

Notices published

Notices must be published in a national newspaper - in this case the Times - the London Gazette and a local newspaper (twice). You'll have to pay to see the online version of the Times notice these days, or pay £1 for a traditional copy, but the London Gazette notice can be found here: page 1 page 2.

If you want a hard copy of the suite of application documents you'll have to fork out £1800, but a DVD can be obtained for £15.  The documents are also all online on the IPC website here.  Not on the IPC website but on Covanta's own website is a handy 'signpost document' that sets out what all the application documents are, which can be found here. Finally, the documents can be inspected in hard copy free of charge at various libraries and other venues set out in the gazette notice.

Objection procedure

To be able to make an objection - or representation in support - you must be registered on the IPC website.  The requirement that representations must be made on a 'registration form' is buried in the regulations dealing with application procedures.  The IPC encourages online registration, but you can phone them (or I suppose write to them if you are particularly low-tech) for a paper version.  The online registration form is here.   The box for the representation itself is limited to 500 words, but is intended to be a 'brief summary' of the representation.  Note however, that when asked to expand on this later, you cannot introduce new topics that weren't in the summary.

The form asks if you want to attend a compulsory purchase hearing, open floor hearing or issue specific hearing, the three types of hearing that can be held during the examination period.  Although the Planning Act discourages oral evidence, ticking the 'open floor hearing' box requires one to be held, so it is not hard to reverse the presumptoin.  The question about the third type is rather difficult to answer since it is up to the IPC to decide what issues there should be issue-specific hearings on, and you will not know these yet.

The form asks if you wish to attend the preliminary meeting - this is not binding and you will be invited anyway, but is to gauge numbers.

The objection period closes on 19 November, giving 43 days to make representations (the minimum being 28 days from the last notice, which will be in a week's time).   Adding an extra eight days is considered generous in these matters!

The next step is the holding of the preliminary meeting, which is recommended to take place about six weeks later, but since that is New Year's Eve, it will probably be mid-January 2011.

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172: Further delays to nationally significant infrastructure projects

6th October 2010

It has been compulsory for applications for sixteen types of infrastructure project above a specified size in England, five in Wales and one in Scotland to be made to the Infrastructure Planning Commission since 1 March 2010.  Nevertheless, seven months later only six projects have started their formal pre-application process, and only one application has successfully been made.  Why?

The IPC publishes dates of when it expects to receive applications, based on information supplied by project promoters.  These dates have been gradually slipping back.  The latest casualty is a biomass plant in Hull, which was due to be made on 1 October, but there is no sign of it yet.  Having said that, this apparent slippage may just be a feature of the way dates are shown: '1 October' could in reality just mean 'October'.

Even once an application has been made and accepted, there is one further opportunity for delay by the promoter.  This is because the next step is for the promoter to publicise that the application has been accepted, which kicks off the objection period.  There is no set timescale for this - if the promoter was in a hurry it could do this two or three days after the IPC had told it that the application had been accepted, but it could wait longer if it so chose.  Indeed, the only accepted application was accepted on 26 August, but the promoter has yet to publicise this, nearly six weeks later.

Once that step happens, then the timing of the process is out of the promoter's control.  After the objection period ends, the IPC should call a 'preliminary meeting' (planning inquiry regulars will know this as a 'pre-inquiry meeting', but since inquiries are discouraged, the Planning Act doesn't call it that).  There is no fixed timescale for that either, but government guidance recommends that the meeting is held no later than six weeks after the end of the objection period.

Once the preliminary meeting has been held, then the application is on a fairly unstoppable conveyor belt.  The examination of the application must take no more than six months from the date of the meeting, and if the relevant National Policy Statement (NPS) is in place, the IPC must decide the application within nine months of the meeting.  If there is no NPS, then the IPC has nine months to make a recommendation to the government, who then have a further three months to make a decision.

So why has every project so far slipped past its original date?  One reason is that, as I have said before, every project slips, except perhaps those with an immovable deadline like the Olympic Games.  'Optimism bias' is now regularly added to cost estimates for projects, perhaps it should apply to timings too.  Before the Planning Act and the IPC came along, application dates were seldom announced in advance, and so the slippage that occurred was private.  Delays for this reason are therefore not down to the new regime.

A second reason is implicit in the above text: once the acceptance of the application has been publicised, the timing of the process is out of the promoter's control.  Project promoters will want to be absolutely sure that they have all their ducks in a row before they relinquish control over the project timetable, and to continue the fairground analogy, get on the application examination rollercoaster.  That reason is a new one caused by the fixed timescales in the Planning Act.  Few would argue that they are a bad thing, as they are one of the key features of the Act designed to speed up the authorisation process.

A third reason is the new and onerous requirement for much work to be carried out before an application is made, and promoters are underestimating how much time this takes.  Again, this is a deliberate feature of the new system - partly, it must be said, so that the clock only starts running once a lot of the work has been carried out, but partly because applications are likely to be better (cheaper, faster and more likely to succeed) if potential objections have been flushed out and addressed before they have been made.

A fourth reason is that in the energy field at least, several applications were made in the weeks before 1 March to avoid the uncertainty of the new regime, which has probably given rise to a gap in timing.

Finally, this is a new process and promoters and the IPC are finding their feet.  Routine, familiarity and precedent are all likely to reduce the time taken for the pre-application process. Not only is the process onerous, but there are several strands to it and no clear preferred order of doing things has yet emerged. Once this particular wheel has been invented, projects should start to speed up.  This should pay dividends in the long run, given that the same process applies to a diverse range of projects, which were previously subject to several different consent regimes.

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171: IPC reaches memorandum of understanding with WAG

4th October 2010

Today's entry reports on Friday's concordat between the Infrastructure Planning Commission and the Welsh Assembly Government.

Infrastructure Planning in Wales

The Planning Act applies to Wales, but in a cut-down version where an application to the Infrastructure Planning Commission (IPC) is restricted in several ways:

* it can only be made for five of the 16 types of project in the Act
* it cannot include 'associated development' other than in one very limited case
* it does not dispense with the need to apply for 'heritage' consents, and
* it cannot deem a FEPA licence, or its replacement a marine licence.

The five types of nationally significant infrastructure project (NSIP) are generating stations (a wide type, ranging from nuclear power stations to windfarms), overhead electric lines, one type of gas storage, pipelines and harbour facilities.

'Associated development' consists of items other than the main NSIP that would need planning permission but you can include them in an application in England. In Wales, however, planning permission for everything that isn't the main project is still needed from the local council, except for some devlopment relating to a gas storage project.

The heritage consents are ancient monument consent, conservation area consent and listed building consent.  They must also be applied for separately if needed, unlike in England, where they are not needed.

A Food and Environment Protection Act licence is usually required if the project includes offshore works.  In Wales, this must still be a separate application, to the Welsh Assembly Government (WAG).  When the relevant provisions of the Marine and Coastal Access Act 2009 come into force, this consent will be replaced by a 'marine licence', but it will still have to be applied for separately.

Additionally, for Welsh applications being decided by more than one commissioner, if possible at least one of the commissioners should be nominated by WAG.  It is not clear if any commissioners were nominated by WAG when first appointed, indeed it looks as though none was, but they can be nominated later.

These restrictions do not seem to have dissuaded potential applicants. Wales has more prospective projects on the IPC's books than any other region - 13, or more than a quarter of the total.

On the other hand, special care is needed in preparing an application in Wales given the above restrictions.  The IPC declined to consider the only application for a Welsh project so far submitted to it.

The Memorandum of Understanding

WAG is the Welsh Assembly Government rather than a footballer's consort, although it has recently got into bed with the IPC to create a 'Memorandum of Understanding' (MoU), which can be found here. There is also a Welsh version, in keeping with its aspirations to treat English and Welsh equally as far as possible (although the application form for an NSIP is currently English-only).

The main gist of the MoU is to create established lines of communication between the two bodies so that responses are timely and nothing gets lost, and regular non-project specific meetings will be held every six months.  There are one or two other nuggets, though.

One is that WAG will seek to agree with an applicant if it wants a longer consultation period than the applicant is offering during either the pre-application consultation or once an application has been accepted (i.e the objection period).  Applicants may therefore have to expect some give and take over their consultation periods.

Another is that the IPC will consult the Welsh Language Board and the four Joint Transport Authorities in Wales when it is asked for a scoping opinion, even though these are not in its list of statutory consultees.  WAG will also be consulted on nuclear power station applications in England as well as Wales.

Finally, the document advises that applicants will be expected to have obtained, or be very likely to obtain, all the additional consents that will be necessary, before the end of the IPC application examination period - clearly another point for potential applicants to note.

The future

It may have concluded this MoU with the IPC, but WAG has an eye on the future.  Earlier this summer environment minister Jane Davidson AM called for a meeting with the decentralisation minister in Westminster, Greg Clark MP, to seek a transfer of powers for infrastructure planning to it upon the abolition of the IPC in April 2012.  See this press release.  Next month's Localism Bill would be the most likely place for any such decentralisation to take place, if the pleas are heeded.

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