Application Procedures for Nationally Significant Infrastructure Projects
Background
The Planning Act 2008 (“the Act”) introduced a new planning regime for nationally significant infrastructure projects for transport, energy, water and waste.
In particular the Act requires the Government to produce National Policy Statements for nationally significant infrastructure. These are intended to integrate environmental social and economic objectives including climate change commitments in order to deliver sustainable development. They will set out the national need for infrastructure development and set the policy framework within which the Infrastructure Planning Commission (“IPC”) will decide applications for consent for individual projects.
The Act also introduced a new duty on promoters of nationally significant infrastructure projects to ensure that their proposals are properly prepared and consulted on before they submit the application to the IPC.
The Act created the IPC as a new independent body to consider and decide applications for consent for nationally significant infrastructure projects. Decisions will be based primarily on the National Policy Statements. The process of examination of the proposed development will be streamlined and questioning at any hearing will be led by commissioners rather than adversarial.
The Government plans to establish the IPC so that it is ready to start advising potential applicants from the autumn of 2009 with a view to receiving the first applications for consent in the first half of 2010.
Consultation on regulations governing applications for consent
Whilst the Act set out the framework for the new regime, secondary legislation is required to set out the detailed procedures and rules. The Government is now seeking views on the information that must be included when submitting an application under that regime, including how the pre-application consultation should be carried out. The consultation paper, called The Planning Act 2008 Consultation on the Pre-Application Consultation and Application Procedures for Nationally Significant Infrastructure Projects, was issued on 30 March 2009 and the deadline for responses is 19 June 2009. All those involved in applying for or objecting to a major infrastructure project will want to familiarise themselves with the proposed procedures and submit their comments if they feel that there are areas that could be improved. The Government intends these new regulations to come into force in the autumn of 2009.
Pre-application consultation
Applicants are expected to carry out thorough and effective pre-application consultation with a wide variety of stakeholders before submitting their application to the IPC. The draft regulations on applications and procedures set out the minimum legal requirements for what the applicant must do. The draft guidance notes set out the principles which the applicant should consider following when carrying out their pre-application consultations. The IPC has to be satisfied that the pre-application consultation has been carried out satisfactorily before it will accept the application for determination.
Given that pre-application consultation can take a considerable amount of time to carry out, the Government is proposing that there will be transitional provisions which will apply to applications for nationally significant infrastructure projects where the consultation began between October 2007 and October 2009 so that where high quality community consultation has taken place, it will not be necessary to repeat it simply to comply with the new regulations. To fall within the transitional provisions an application must be submitted before October 2011, only consultation that took place after October 2007 can be considered and it must have met the consultation requirements in force at the time.
Under the new regime, an applicant must engage in pre-application consultation with local communities, local authorities and those who would be directly affected by the proposals. The regulations do not specify a particular method of consultation but rather propose a range of options as a toolkit from which an applicant can construct an approach that best suits the project, for example, workshops, drop in sessions, citizen panels and telephone help lines. The applicant should work with the local authority to understand how best to engage with the local community. A range of methods and techniques should be used to try to access all sectors of the community. Communities should be given the opportunity to give their input early in the process when proposals and options are still being developed so that they know their participation can make a difference. Sufficient time must be given for consultees to formulate a response especially where complex technical issues are involved.
The applicant must draw up a Statement of Community Consultation which describes how he proposes to consult the community and submit it to the local authority for their comments. Once the applicant has finalised the statement it must be published in a local newspaper and the consultation must then take place. The applicant must also consult the relevant statutory consultees and technical consultees as set out in the regulations. Following the consultation process the applicant must prepare a consultation report explaining what consultation was undertaken, summarise what responses were received and what was done in response including any changes made to the project and submit the report to the IPC.
Submitting an application for consent to the IPC
The draft regulations on applications and procedures specify in detail how an application should be set out and what information must, or potentially could, be included depending on the type of project applied for. The IPC has to be satisfied that the contents of the application are satisfactory before it will accept the application for determination.
The application must contain a draft of the order that describes all the development that the applicant is intending to carry out. The Government has issued draft regulations on model provisions which are intended to help applicants in drafting orders. By using these model provisions common issues that arise in all or most applications should be dealt with in a consistent manner.
An applicant can seek development consent for associated development as part of the application for nationally significant infrastructure. The Government has issued draft guidance on associated development which sets out the principles for what will constitute associated development to assist applicants.
The application to the IPC will consist of an application form, prescribed documentation (as set out in regulation 5) and any other information necessary for a particular proposed development (as set out in regulation 6). A copy of the required application form is attached to the draft regulations at Schedule 2. It effectively acts as a high level non-technical summary of the proposed development, shows the location of the proposed development and through the list of accompanying documents gives a preliminary indication of the types of issues that will need to be considered in order for consent to be granted. The Government will provide a guidance note to help applicants complete this form and to give advice on which documents should accompany it. A draft of this guidance note is provided at Annex 1A to the draft regulations.
If the IPC is satisfied that the applicant has submitted all the necessary information as part of the application and done all the necessary pre-application consultations then it will inform the applicant that the application has been accepted. The applicant is then obliged to publicise the fact that the application has been accepted. The applicant can then confirm that it has carried out the appropriate notification and publication by submitting notices to the IPC on forms set out in draft at Schedules 3 and 4 of the draft regulations.
EIA regulations
Where consent is sought for nationally significant infrastructure projects, the Environmental Impact Assessment regulations will also apply. The Government is proposing draft regulations to give the IPC responsibility for deciding whether EIA is required for such a development and if so, then what it should cover.
This article was first published in the Property Law Journal on 18 April 2009.
