THE PLANNING ACT 2008 received Royal Assent on 27th November 2008...

Review of the Planning Act 2008

Introduction

The Planning Act 2008 ("the Act") received Royal Assent on 27 November 2008 and is of major importance to developers and objectors interested in nationally significant developments.

In the New Year, the Government is expected to publish:

· a timetable for the creation of the Infrastructure Planning Commission including the appointment of a Chairman and Chief Executive and when a decision will be made on the location of the body

· a timetable for the consultations on the regulations to create the IPC powers and the eleven National Policy Statements

· development and publication of Government guidance for the operation of the IPC

· the expected timetable for consultation and designation of NPSs. Scrutiny of drafts is expected to begin in 2009 with the first tranche designated in 2010

This review identifies the main provisions of the Act and, explains their effects.

The New Planning System

The new system will unify the existing eight regimes for nationally significant infrastructure into a single consent regime, under which the Government will set out the case for infrastructure in areas such as energy, aviation, road and rail transport, water and waste in National Policy Statements integrating social, economic and environmental policies.

Developers will be required to consult local communities and other key stakeholders prior to submitting applications, and to conduct environmental assessments where required by EIA regulations

Decisions on nationally significant applications will be made by an independent Infrastructure Planning Commission (IPC), within the framework of the National Policy Statements; policy set after widespread public consultation and scrutiny by Parliament.

Inquiries and decisions will be subject to statutory timetables. By streamlining consent procedures by rationalising the different regimes, improving inquiry procedures, and imposing statutory timetables on the process, we expect the time taken from application to decision to fall to under a year in the majority of cases

Eleven National Policy Statements are currently planned. These are:

· overarching energy (providing an overview of the other 5 energy NPSs)

· fossil fuels

· renewable energy

· electricity networks

· gas and downstream oil infrastructure

· nuclear power

· ports

· National Networks (strategic highway and rail networks)

· aviation

· water supply and waste water treatment

· hazardous waste (not including nuclear waste)

Public involvement is a key feature at all three stages of the new planning system:

· there will be public consultation on draft national policy statements. For location-specific national policy statements, local communities will be consulted

· at the pre-application stage, promoters will be required to consult relevant local authorities and local communities on project proposals, giving them a better opportunity to influence outcomes at an early stage

· the examination stage will be easier for the public to engage with; anyone who registers an interest will be able to trigger an open floor hearing, and all interested parties will have a right to be heard at that hearing; in addition, where the commission calls a hearing to probe a specific issue, interested parties will have a right to be heard at that hearing on that issue. There will also be extra funding for Planning Aid to help local communities and hard-to-reach groups have their say

The Infrastructure Planning Commission

The Infrastructure Planning Commission (IPC) will, effectively, replace local authorities as decision makers and will be responsible for granting 'development consent' in relation to Nationally Significant Infrastructure Projects (defined below). The introduction of the IPC will obviate the current need to obtain consents under several different regimes and, should help to streamline the current system.

The decisions of the IPC will be based on National Policy Statements issued by the Secretary of State (SoS) who will also be responsible for making decisions on applications for development consent where no relevant National Policy Statement is in force. The entire process will be timetabled.

Development Consent will be granted by means of a Development Consent Order (DCO) from the IPC or SoS.

National Policy Statements

The SoS will issue National Policy Statements (NPS) which will provide the policies relating to NSIP, seeking to identify the national need for infrastructure early and, to provide more clarity before a developer makes an application for a Development Consent Order (DCO).

To achieve this, an NPS may relate to a specific type of development and, specify the amount, type or size of development that is appropriate nationally or, for a specified area. They may even go so far as to identify suitable (or potentially suitable) and unsuitable locations, thus aiding the client to identify potential sites before carrying out any pre-application work. In addition, they may set out criteria for determining whether or not a location is suitable for a specified type of development.

The client will, importantly, have an opportunity to voice its comments on the content of a proposed NPS before adoption and, when reviewed. NPSs will be appraised for sustainability, consulted on and publicised both before they are adopted as national policy and, when reviewed by the SoS.

Reviews may be carried out whenever the SoS deems it appropriate to do so. The SoS will be under a duty to consider any responses to the consultation and publication when determining what action to take. A useful opportunity for a client to take the initiative and influence the content of NPSs.

The act also provides a means of challenge to NPSs by way of judicial review. More particularly, the following matters may be challenged within six weeks of the event:

i. An act or omission in the preparation of an NPS;

ii. Decision of Secretary of State to review/not to review an NPS;

iii. Anything done or omitted by the Secretary of State in the course of review;

iv. An amendment, withdrawal or lack of amendment of an NPS;

v. Decision to suspend operation of all or part of an NPS

The ability to challenge so many powers of the SoS is of dubious merit however, it will undoubtedly enable objectors to delay decisions.

What is an NSIP?

The following table provides a useful guide on what constitutes an NSIP

CATEGORY	DEVELOPMENT	REQUIREMENT/S TO BE NSIP
ENERGY	1. Generating Stations 2. Electric Lines 3. Underground Gas Storage Facilities 4. Liquid Natural Gas Facilities 5. Gas Reception Facilities 6. Gas Transporter Pipelines 7. Other Pipelines	1. Onshore more than 50 megawatts, offshore more than 100 megawatts 2. More than 20 kilovolts not intended for supply to a single consumer 3. Storing at least 43 million standard cubic metres (SCM) or with a flow rate of at least 4.5 million scm per day 4. Receiving, storing or regasifying liquid natural gas, storing at least 43 million scm or with a flow rate of at least 4.5 million scm per day 5. Receiving and/or handling (not storing) natural gas (gaseous form) from outside England and will be in England; Maximum flow rate of the facility at least 4.5 million scm per day 6/7. The pipe-line is expected to be a cross-country pipe-line or a pipe-line which would require authorisation under section 1(1) of the Pipe-lines Act 1962.
TRANSPORT	1. Highways 2. Airports 3. Harbour Facilities 4. Railways 5. Rail Freight Interchanges	1. Construction, improvement or alteration of a highway 2. Construction or alteration of an airport carrying more than 10 million passengers per year or, in the case of air cargo, more than 10,000 movements per year 3. construction or alteration of harbour facilities adjacent to England or Wales or within territorial limits, subject to capability of handling 'relevant quantities' of material e.g 500,000 TEU for container ships. 4. Construction of a railway wholly in England and which is part of the railway network 5. Construction covering an area of at least 60 hectares wholly in England and, for alteration, increasing area by at least 60 hectares
WATER	1. Dams and Reservoirs 2. Transfer of water resources	1. Construction will be in England carried out by a water undertaker and will hold back/contain a volume of water exceeding 10 million cubic metres. For alteration, the effect should be expected to increase capacity above 10 million cubic metres 2. Carried out in England by one or more water undertakers, the volume of water transferred exceeding 100 million cubic metres per year, between river basins, water undertakers' areas or both. Does not include developments relating to drinking water
WASTE WATER	Waste Water Treatment Plants	When constructed will be in England and, expected to have a capacity exceeding a population equivalent of 150,000. Alteration should increase capacity to above 150,000
WASTE	Hazardous Waste Facilities	When constructed will be in England for the final disposal or recovery of hazardous waste and, expected to have capacity to store 100,000 tonnes per year (in the case of landfill or deep storage facility) or 30,000 tonnes per year in any other case. Any alteration should have the effect of increasing capacity by 100,000 or 30,000 tonnes respectively

How long will it take to obtain a Development Consent Order?

The following table provides a useful timetable of events together with deadlines:

STAGE	PARTIES AND ACTIONS	DOCUMENTS	PUBLICITY REQUIRED	DEADLINE

Pre-Application	1. Applicant to notify IPC of intention to submit application 2. Applicant to contact Local Authority prior to consultation and agree Consultation Statement 3. Applicant to consult: · Owners/Occupiers of land · Local Community	2. Statement of proposed consultation	2. Yes, Applicant to publish Consultation Statement	3. Consultees have 28 days to respond
Application	1. Applicant to submit application to IPC 2. Acceptance of application by IPC and Applicant to notify parties	1. Application form, Prescribed documents, Consultation Report, Model Provisions for draft Development Consent Order	2. Yes, Applicant to advertise accepted application
Local Impact Report	Local Authority invited to submit Local Impact Report (LIR)	LIR		Six months from Start Day *
Committee Selection (Examining Authority - EA)	1. Simultaneously with Stage 3, the IPC must decide if application is to be examined by: A Panel of Commissioners, or A Single Commissioner (cannot decide application - must report to SoS who will decide application) 2. Where no National Policy Statement is in force SoS may examine application
Examination by EA	1. EA to decide on principal issues affecting application 2. Convene and hold a meeting with applicant and interested parties (Start Day*) 3. Examine application 4. EA to report and make recommendation to IPC where NPS is in force or SoS in any other case 5. Inform each party of completion of examination			3. Six months from day after Start Day* 4. Three months from day after deadline for completion of examination
Decision	1. EA to decide whether or not to grant development consent order			1. 3 months from day after completion of examination

* Start Day: day on which the IPC holds its first meeting with the applicant and other interested parties.

The Act has reserved a power for the IPC to alter the deadlines applicable to the stages of the application process, which may be exercised more than once in relation to the same deadline. A minimum time of 1-2 years would appear to be a reasonable estimate upon which clients can base their own projections.

2. Changes to the Town & Country Planning Regime

Many of the changes made by the Act relate to incorporation/addition of its provisions into the Town & Country Planning Act 1990 (TCPA1990), the Planning & Compulsory Purchase Act 2004 (PCPA2004) and, other acts governing planning.

The more significant amendments to the existing system relate to:

§ Blighted land - incorporating land identified in an NPS or DCO as falling within this definition.

§ Delegation of functions of Regional Planning Bodies the SoS may now delegate their functions to Regional Development Agencies of Regional Planning Bodies.

§ Climate change changes to the PCPA2004 require local authorities' development plan documents to include policies which contribute to the mitigation of and adaptation to climate change.

§ Power of High Court to remit strategies, plans and documents this is a power introduced into the PCPA2004, substituting section 113(7). It allows the High Court to quash or send a relevant document back to the body who prepared it, stating that certain steps should be taken. An application for an order may be made by a person whose property is affected by the strategy, plan or document.

§ Local authorities' power to make non-material changes to planning permission this may include addition, removal or alteration of conditions although this power may only be used on application by a person interested in the land. The process is subject also to publicity and consultation.

§ Tree Preservation Orders - Permits English and Welsh Ministers to make regulations, independent of each other in relation to tree preservation orders.

§ Use of Land - Confers powers on Welsh Ministers to override easements and other rights over land in connection with planning permission.

§ New s303 TCPA1990 introducing powers for English and Welsh Ministers to charge fees for applications and appeals. It is intended that the Act will confer power on local authorities to hear appeals for minor developments as well as applications for planning permission. It is not clear yet how this will work in practice or what will constitute minor development.

§ Amendments to Government of Wales Act 2006 conferring powers on The National Assembly for Wales equal to those of the SoS to take planning decisions in relation to 'Wales only' matters such as development plans. Such plans will not have effect in relation to an application for development consent.

3. Community Infrastructure Levy (CIL)

The overall purpose of CIL is to ensure that costs incurred in providing infrastructure for an area are funded (wholly or partly) by owners or developers of land, the value of which increases due to permission for development.

Liability

CIL will be payable in respect of land when development is commenced in reliance on planning permission.

Under the regulations, "development" means the creation of a new building, or anything done to or in respect of an existing building.

The regulations may make exceptions to development such as works, or changes in use, of a specified kind not to be treated as development. Reductions may be made for development by a charity or where it is for charitable purposes.

Amount

The amount will be determined by reference to a "Charging Schedule" issued by the local planning authority which will set rates or other criteria for determining the amount of CIL payable. This schedule must be published (envisaged as part of Local Development Frameworks). Amounts of CIL charged are open to challenge based on questions of fact relating to applying methods of calculation.

The actual and expected costs of infrastructure will be taken into account together with the expected increase in value of the land as a result of planning permission and, other sources of funding.

Before development commences (or even before planning permission is applied for), it may be possible to obtain an estimate of the amount of CIL to be charged in respect of a development. A useful item for any client in budgeting for projects.

Application

CIL must be used for funding Infrastructure which includes:

(a) roads and other transport facilities,

(b) flood defences,

(d) medical facilities,

(e) sporting and recreational facilities,

(f) open spaces, and

(g) affordable housing (being social housing within the meaning of Part 2 of the Housing and Regeneration Act 2008 and such other housing as CIL regulations may specify).

This list may change from time to time but the regulations governing CIL will require local authorities to publish a list of projects that are to be, or may be, wholly or partly funded by CIL. Again, this is useful information when anticipating expenditure.

Payment

Payment may be made on account or in instalments and, may be repaid where there has been an overpayment. The regulations may provide for payment to be made be in 'money or money's worth', such as making land available, carrying out works or providing services.

Collection

The collection of CIL will be governed by the regulations under the Act and, will set out the procedures to be followed by local authorities in doing so. Currently, there are no substantial amendments to the T&CPA1990 concerning s106 Agreements and so it may be that these are used to secure payment of CIL together with other methods yet to be introduced by the regulations.

Enforcement

The regulations will make provision about the consequences of late payment and failure to pay.

CIL is, essentially, a tax and therefore, evasion, attempted evasion, the provision of false or misleading information, failure to provide information, and offences relating to the prevention or investigation of other offences could result in criminal proceedings.

Delay or failure to pay CIL may result in a fine of £20,000 or, in extreme cases, imprisonment for up to two years. The Local Authority may also charge interest, impose a penalty, register a Local Land Charge or suspend or cancel a decision relating to planning permission.

Compensation

CIL regulations may require payment of compensation for loss or damage suffered as a result of enforcement action in relation to the suspension or cancellation of a decision relating to planning permission, and/or the prohibition of development pending assumption of liability for or pending payment of CIL.

Zyda Law LLP

2 December 2008

Note 1: This paper has been produced by Zyda Law LLP for information purposes only. It is not project or development specific and should not be relied upon as legal advice.

Note 2: Where advice is required on the Planning Act 2008 then please contact Mr Luke Latham (lukelatham@zydalaw.com)