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Playing by new rules on utility planning consents
Tony Kitson and Chris Williams discuss the implications of proposed planning guidance for promoters of new utility developments.
The pressing need for new energy generation and transmission in all its forms, as well as other major infrastructure, has prompted the government to create a new consent regime separate from the existing planning system.
The Planning Act 2008 set up the Infrastructure Planning Commission (IPC), which will be responsible for the administration and determination of applications for development consent for nationally significant infrastructure projects (NSIPs). Applications will be decided in accordance with national policy statements, to be produced by government.
The department for Communities and Local Government recently published a consultation paper on application procedures for NSIPs, with a model form of development consent and draft applications rules. The procedures, however, do not seem to offer dramatic improvements in speed and efficiency in processing applications - the justification for creating an entirely new regime.
One of the claimed advantages of the new regime is that the IPC will be able to get a grip on the amount of time taken to determine applications. Currently, planning inspectors are mainly obliged to sit and note the exchanges of adversarial parties. The IPC will be expected to take a more interrogatory role, defining the key issues itself and limiting the time available to parties to put their case. Unfortunately, the advantages of shorter hearings are likely to be undermined by features of the new applications procedures.
In public law terms, limitations on the right to be heard at the determination stage need to be validated by increased public consultation at the pre-application stage. Put simply, the new system intends to move large parts of a traditional planning inquiry out of the IPC inquiry and into the pre-application stage. The effect of this may well be to reduce the length of the resulting IPC inquiry, but it adds considerably to the pre-application workload on the promoter.
Three rounds
Applicants will need to undertake three rounds of consultation, starting with consultation on the consultation process itself. This will be followed by consultation on the application proposals in draft and, finally, full consultation on the application and all supporting documents before the application is submitted.
Applicants must take note of any relevant responses and produce a formal report to explain how the project has changed as a result of consultation, or to explain the reasons for not following up any significant responses. The IPC will have to certify that all consultation procedures have been followed before it lets the application proceed.
Promoters will therefore need to be ready to front-load their applications and follow the prescribed consultation procedures, in spite of indifference or irrational responses from consultees and commercial pressure to speed up the process.
A significant change from the current environmental impact assessment regulations under the new system is that there will be a new requirement to carry out a formal consultation on an environmental statement before the submission of a development consent order (DCO) application. In practice, this would probably happen at the same time as the consultation on the full application and accompanying documents.
New information
However, the obvious implication of consulting on the environmental statement is the possibility that the consultation responses could produce new environmental information that would have to be considered before the application could be submitted, with the added possibility that some of the reasons for the choice of development proposal would need to be revisited.
The proposed applications rules, which are intended to come into force in October this year, are likely to increase the amount of time and information required to make a valid application. The draft regulations (set out in the first annex to the consultation paper) bear a close resemblance to the regulations for schemes under the Transport and Works Act 1992. Experience with applications under this act suggests that there could be several practical and legal problems. The regulations are highly prescriptive. There is no provision for waiver or the exercise of discretion. In contrast, planning application procedures provide flexibility and discretion, despite a recent trend towards greater prescription.
It is an essential feature of many major projects to preserve design flexibility so the project can be implemented over 15-20 years. It will be important to ensure that aspects of a major project can be considered in outline as part of a DCO application to the IPC.
However, the draft regulations require a level of detail equivalent to a detailed planning application to be provided with an application. This may be because a national policy statement - which is specific to a particular location following a strategic site assessment - may be similar to an outline planning permission, but the indications are that it is likely to be more vague than that.
Onerous
The requirement for a fully detailed application is onerous and may be impossible to satisfy. There may be some relief in the shape of the draft model clauses for a DCO, which allow for some approval of details to be undertaken later by the local planning authority. But discussions to date have revealed that the system is intended to operate with "full" applications and that it will be a matter for the IPC's discretion whether to allow an element of "outline" information with particular types of application. This is an area of significant project risk.
There is no provision in the Planning Act or in the draft regulations for any modification amending or adding to a DCO application in the period after it has been submitted and formally accepted by the IPC, but before the IPC makes its final decision. It is a common feature of major projects that detailed design or engineering developments occur while the project is in the planning process, necessitating detailed amendment to applications and/or the submission of new detailed material during a planning inquiry.
Under the IPC process, however, there will be an expectation that the promoter will have done all of this work before the DCO application is submitted. There have been indications that amendments to applications will be possible after they have been submitted, but only if the IPC is satisfied that all stakeholders have had sufficient notice and opportunity to comment on such amendments. This is expected to be addressed in the third tranche of draft IPC regulations due for publication in autumn 2009. It is another significant project risk.
Detailed regulations
Detailed regulations and guidance may be attractive because they set out the tests that the secretary of state wants applicants to pass to obtain consent. But the more rules there are, the greater the risk of judicial review challenges by third party objectors. If a successful challenge is based on failure to follow prescribed procedural guidance, the courts will have little discretion not to quash a consent. This means that promoters, and the IPC, will need to apply the guidance and regulations with the same forensic rigour as for environmental assessments to avoid delays arising from court challenges on procedural grounds.
What does this mean for new utility projects? Parts of the new rules will demand a change in approach from promoters. At all stages, promoters will have to pay attention to procedural requirements and deadlines. Applications will need to be front-loaded, with extensive consultation and detailed applications. Pre-application work will take longer.
On the positive side, dialogue between the promoter and the IPC throughout the pre-application stages may help to overcome the practical and legal problems associated with the rigidity of the rules. The acceptance of a valid application will be a key milestone in a project.
Utility companies operate in a competitive market. Adherence to the rules with minimum delay and disruption will be crucial. Management of application procedures will have to be efficient and robust, as competitors and objectors will be looking for opportunities to challenge through the courts.
If applicants can manage the process efficiently, the rules offer a fast track to a single development consent. But the value of the new system will also depend on the approach and culture of the IPC, for which we must wait and see. The chairman has been appointed, commissioners are being recruited and the system is expected to be up and running later this year.
Tony Kitson and Chris Williams are partners for the planning team at CMS Cameron McKenna. Email: tony.kitson@cms-cmck.com or chris.williams@cms-cmck.com
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