Ashfords Solicitors - Planning Reform Bill - Nationally significant infrastructure projects

There have been concerns for some years about planning delays to major projects, the most famous example of which must be the four-year Heathrow Terminal 5 inquiry. In 2006 Kate Barker was commissioned by the Government to consider how planning policy and procedures could better deliver economic growth and prosperity whilst Rod Eddington was commissioned to advise on the long term links between transport and the UK's economic productivity. The Eddington Transport Study and Barker Review of Land Use Planning were both published in December 2006. The Government's response, the Planning White Paper "Planning for a sustainable future" set out proposals to reform the current system. The Planning Reform Bill implements the proposals in the White Paper, including introducing a single consent regime for nationally significant infrastructure projects and the establishment of an independent Infrastructure Planning Commission.

The definition of nationally significant infrastructure projects will include transport projects such as the construction of airports or extension of harbour facilities, energy projects such as construction or extension of generating stations or development relating to the underground storage of gas or construction of pipelines, water projects such as the extension or construction of dams or reservoirs and construction of waste water treatment plants and construction of hazardous waste facilities.

The Bill proposes to create a body called the "Infrastructure Planning Commission" which will play a major role in the new system. This body will be responsible for examining applications for development consent for nationally significant infrastructure projects. Members of the Commission would be planning or other professionals with a specialism in a particular area who would serve for a defined term and who would operate independently of ministers, in a similar way to the how the Competition Commission now operates. It is anticipated the Commission would consider around 10 major projects a year, as well as less complex cases such as permissions for new power lines.

Part 2 of the Bill also deals with the creation of national policy statements on infrastructure. There are concerns that currently national policy on infrastructure is not always clear and that where no policy is in place, this needs to be established before an application can be properly considered. There will therefore be a set of new national policy statements issued by the relevant Secretary of State relating to specific types of development. These may set out the amount, type or size of a particular development which would be appropriate for a specified area, include criteria to be applied in deciding whether a location is suitable for a specific type of development and identify suitable or unsuitable locations for development. It is intended that these should look forward 10 to 15 years to ensure that there is a clear policy framework in place to ensure delivery of projects over the short to medium term.

A "development consent", will be required for development in respect of nationally significant infrastructure projects. Where a project requires a development consent under the new Act it will no longer require certain other consents under existing consent regimes, including e.g. listed building consent, or consents under the Harbours Act 1964, Gas Act 1965, or Pipelines Act 1962. There will be a single application process for all development authorisations needed for a nationally significant infrastructure project. Once an application has been submitted to the Commission the usual rounds of consultation, notification, advertisement, consultation will follow, and the application will then be examined by way of either a panel procedure or a single commissioner procedure. The intention is that the examination of applications will be conducted mainly through written representations but that there will be oral hearings or open floor hearings where necessary. Any person who registers an interest will be able to give oral evidence at the relevant stages of the inquiry. However the examination will be carried out by the Commissioners and there will be no right for any party to test evidence via cross-examination. There will no doubt be concerns about the what this will do the ability to test evidence and about whether this will lead to an increase in legal challenges.

The Commission must complete its examination of an application within 6 months from the preliminary meeting and must decide the application or report to the Secretary of State within 9 months of the date of the preliminary meeting. There is power to extend these deadlines. However since one of the main criticisms and concerns over the existing development consent regime for major infrastructure projects is the length of time that it takes to determine them, particularly with examples such as the Heathrow Terminal 5 Inquiry fresh in peoples minds, there will no doubt be considerable pressure on the Commission to deliver decisions more quickly.

Development Consent Orders may impose conditions in connection with the development but will also be able to go further than that, for example authorising the compulsory acquisition of land, creation, suspension and extinguishment of rights over land, the stopping up of highways, charging of tolls and payment of contributions and compensation. A Development Consent Order may authorise the compulsory acquisition of land if the decision maker is satisfied that the and is required for the development or to facilitate, or is incidental to that development, and there is a compelling need in the public interest for the land to be acquired compulsorily.

Time limits for implementation of development consent orders will be imposed in the same way as they are to planning permissions. They will be subject to their own enforcement regime. There will be new offences, including carrying out development for which development consent is required at a time when no consent is in force or breaching the terms of an Order granting consent. Local planning authorities are granted powers to enter land, require information or seek injunctions in connection with their enforcement powers. This suggests that whilst the Commission will be the body granting the development consent, local planning authorities will still have to enforce them.

There will no doubt be concerns about proposals for the Commission to be able to authorise compulsory purchase or the acquisition of rights without having a public inquiry and the implications for human rights that may ensue. Whilst rationalising and speeding up the consent procedure for nationally significant infrastructure projects is important, this should not be done at the expense of quality of decision making, as this will no doubt only serve to result in an increase in legal challenges, and concerns over the legitimacy of decision making.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

27th March 2008

Key Contacts

Planning Reform Bill - Nationally significant infrastructure projects

Introduction