The Infrastructure Planning Commission was set up to fast-track projects of national importance, but it remains to be seen how well it will work
The Planning Act 2008 introduced a planning regime for “nationally significant infrastructure projects” (NSIPs). This was in response to feedback from the developers of such projects, which found themselves stuck in the planning system, often for years. The Planning Act lists the types of developments that are NSIPs and these range from onshore generating stations to dams and reservoirs.
On 1 October 2009, a planning body was set up specifically to deal with NSIPs. This Infrastructure Planning Commission (IPC) was able to take applications from 1 March 2010, despite that fact that it is supposed to reach its decisions in accordance with national policy statements (NPSs) – and these have not yet been published yet. The IPC is required by the Planning Act to decide applications in accordance with any NPSs that could affect that scheme. Therefore, for each application, it may have to take several into account.
Six NPSs related to energy developments and an NPS for ports were released for consultation in November 2009. The consultations closed last month. Although it had been envisaged that final NPSs for energy would be in place in May or June, the government has now hinted that this will be moved to autumn.
The importance of an NPS being in place for a NSIP application is that, without a policy statement, the commission can only make a recommendation to the secretary of state on an application, rather than deciding it itself. The energy NPSs dealt with fossil fuels, renewables, gas supply and gas and oil pipelines, nuclear, electricity networks. There is also an overarching energy NPS that deals with the national need for energy developments.
Of the NPSs that have not yet been released, the national networks NPS is expected shortly, the waste water in spring 2010 and the NPS for hazardous waste in summer 2010. The airports NPS is expected in 2011 and the consultation on the water supply NPS is expected in late 2010.
Applications to the IPC will progress to a tight timetable. Before submission, applicants have to extensively consult the following:
- The local authority
- Any owner, tenant or occupier of the land and people with an interest in or power to sell or release the land
- Anyone listed in the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009.
The applicant also has to prepare a statement setting out how it proposes to consult people living nearby. This has to be published (including in a local newspaper) and the applicant has to carry out a consultation in accordance with these proposals. The applicant has a duty to give regard to the responses it receives during these consultations when deciding whether or not to submit any application. This means they need to consider carefully the responses they receive and adapt their application as appropriate.
Once an application has been submitted, the IPC will decide within 28 days whether or not to accept it. Once accepted, an application will be put to a panel of commissioners or a single commissioner.
Within six months of a meeting with the applicant and others to decide how the application should be examined, the IPC must finish its examination of it, although this deadline can be extended. The decision-maker then has three months to decide on the application. This deadline can be extended.
The process is thus set on much quicker timelines than at present and this should mean NSIP applications progress more speedily. However, whether the IPC will be able to meet these timescales remains to be seen (it is likely there will be requests for extensions).
The main area of concern for NSIP developers at present is therefore the length of time NPSs will take to get to the designation stage and the true time the IPC will take to determine NSIPs. If there are delays with the first batch of NPSs, will this have a knock-on effect? Add to this the uncertainty as to how the system would be amended if the Conservatives come to power, and it can be seen that a system that was designed to give developers increased certainty is not, in its inaugural year, providing as much comfort as developers may have hoped.
Richard Griffiths is an associate and Sarah Merritt a solicitor at Pinsent Masons