Major Key

Infrastructure_iStock_000018152756Small_120x90The Localism Act makes some important changes to the regime for approving nationally significant infrastructure projects. Angus Walker explains the differences.

A new regime for planning and authorising nationally significant infrastructure projects (NSIPs) was introduced by the Planning Act 2008. Less than three years later, and after the approval of only one project under the new regime, the Localism Act 2011 has been passed and makes several changes to it. This article explains what they are.

Abolition of the IPC

First, the new body that was to take decisions on NSIPs, the Infrastructure Planning Commission (IPC) is to be abolished, or more accurately merged into the Planning Inspectorate. This is significant since it is currently an independent body, but once part of PINS will become an agent of the Government. It also means that it will only ever have taken one decision on an application, since by 6 April 2012, when the Planning Act 2008 amendments are expected to come into force, no applications other than the one already decided will have reached the point of decision.

I understand that the part of PINS that will be the replacement for the IPC will be called the National Infrastructure Directorate, or NID, rather than its previous proposed name of the Major Infrastructure Planning Unit or MIPU.

The Secretary of State will take the decisions on applications after the NID has been given three months to make a recommendation to him or her. The relevant Secretary of State will be given a further three months to do this, which despite what the Government might say, means that decisions will take three months longer than before the Localism Act changes are implemented.

There are provisions for the Government to be able to arrange for the transition of ‘live’ and forthcoming applications, so that steps done already will not have to be repeated once the IPC is abolished. This is part of the so-called ‘seamless’ transition from the original regime to the new one.

National policy statements

The Coalition Agreement said that Parliament would approve national policy statements, the documents against which applications for NSIPs are measured in terms of need and impacts. In fact, the Localism Act just gives the House of Commons an ability to disapprove of a national policy statement within 21 days of the final version being laid.

New flexibility

A welcome change is that the Planning Act regime is to be able to have further consents added to it – at the moment only a fixed list of consents (eg, planning permission, listed building consent) are able to be incorporated in the combined ‘development consent’ that is issued by the IPC or its successor.

Bringing below-threshold applications into the regime

The ability to ‘upgrade’ a below-threshold project into the regime will be able to take place at an earlier stage. The regime applies to 16 types of infrastructure project and for each, a threshold is given in the Planning Act above which a project is considered nationally significant and must use the regime.

The Government can decide that a project below the threshold is nevertheless nationally significant and should use the regime, but currently this can only take place when the application under whatever other regime is being used is made. The change means that projects can be ‘upgraded’ on request, which could be much earlier, and would avoid the unnecessary preparation of an application to the wrong consenting body.

The main example that prompted this change is the proposed Thames Tunnel, where promoter Thames Water would have had to make 14 planning applications to boroughs along the Thames before the project could be brought into the regime. In practice, however, the Government is amending the list of projects to which the regime applies in general, as it will be able to achieve this more quickly.

Note that there is no power to ‘downgrade’ a project that is within the regime to come outside it.

Consultation changes

There is a reduction in the number of local authority consultees. At the moment all local authorities that share a boundary with a local authority where the project is situated have various roles such as consultees. This is amended slightly so that districts that border a ‘host’ county council area will no longer be involved. Counties and unitary authorities that border a host county will still be involved, so there is not much of a reduction.

Only summary statements of community consultation need be published in newspapers. This means that everything a promoter might want to say about community consultation does not need to be published at vast expense.

Landowner powers

There is an extension of the ability to compel landowners to give title information to all those who could make a claim for compensation. Previously, this power could not be used to obtain information from all relevant landowners.

There is an extension of the ability to compel landowners to allow entry on their land for surveying purposes. This is a welcome change, as currently it is limited both in time and geographical scope – the power can only be used after pre-application consultation has commenced, and can only be used for land that is to be compulsorily acquired. It will now be able to be used earlier, and will apply to a more general definition of land.

Approval of requirements

‘Requirements’ (ie, conditions) can involve the approval of various bodies. Currently, the ‘model’ requirements that have been published require approval by the IPC, which is unlikely to be workable. The IPC can arguably be replaced by the local planning authority already, but this amendment extends this to any body.

Pre-application advice

Finally, pre-application advice can be given on the merits of a proposed application. This is another welcome change as the IPC was careful not to do so (being prohibited from doing so), but it impinged on its willingness to give advice on procedure, in case it could be interpreted into straying into merits advice.

Minor changes

There is a slight amendment to the compulsory purchase notice requirements, a very minor change. Additional people can become parties interested in an application after the end of the objection period – at the moment the list cannot be extended.

Changes made after the Localism Bill was introduced

Four further changes were made to the Bill after it was introduced in Parliament. There were many calls for further streamlining of the Planning Act regime, but only these changes were accepted by the Government and converted into amendments that they subsequently made to the Bill.

First, only devolved consents rather than any consent in Wales cannot be added to the regime.

Secondly, there is a relaxation of the standards of applications, so it is now those that the Government considers ‘satisfactory’ that will be accepted rather than strict adherence to the provision of the Act and supporting legislation. This is much welcomed by promoters as a technical failure to adhere to the application requirements would strictly speaking mean that the application should be rejected currently, even if there is no prejudice to any party.

If earlier stages of considering an application are completed early, later stages start earlier. At the moment, if the six-month examination stage for an application is completed in five months, then the three-month recommendation stage automatically lengthens to four months (since the end of the period is calculated from the start rather than the end of the examination period). With this change, the recommendation period will stay at three months (I am claiming responsibility for pointing that issue out to the Government).

Special Parliamentary Procedure (SPP) will only apply to the taking of statutory undertaker, local authority or National Trust land if that organisation actually objects to the land being taken, rather than just making a representation of any kind. SPP is an additional procedure that takes place in Parliament after the IPC has reached a decision if certain types of land are proposed to be compulsorily acquired. The Planning Act was rather loosely drafted so that if a local authority, for example, had made any sort of representation about an application (even one in support), then if some of its land was being taken, SPP would have to be undertaken. SPP will now only apply if the local authority specifically objects to its land being taken.

Conclusion

The headline effect of the Localism Act on the Planning Act regime is the abolition of the IPC. In fact the process that the Planning Act introduces survives more or less intact. The Localism Act makes various minor improvements to the regime in the light of the limited experience of it to date, all of which are improvements. The Government will now undertake a review of secondary legislation, as it will have to remove references to the IPC, and it is likely to make further changes to the regime while it does this.

Angus Walker is a partner at Bircham Dyson Bell. He can be contacted on 0220 7783 3441 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. Read his blog on the Planning Act 2008 on Local Government Lawyer.