What the Planning Act 2008 means for local authorities

April 6, 2010

Local authorities have been given a number of roles in the new regime for authorising nationally significant infrastructure projects brought in by the Planning Act 2008. Angus Walker looks at what they mean in practice following the publication last month of guidance from the Department for Communities and Local Government and advice from the Infrastructure Planning Commission.

The Planning Act 2008 is designed to speed up the authorisation of the largest infrastructure projects while creating greater certainty in advance whether applications will succeed or fail. Local authorities have been given several new roles by the Act, although there is something of a disagreement between the government and representatives of local authorities as to whether this is a ‘new burden’ (which would mean the government would provide funding) or not.

The first time that a local authority will officially hear about a project could be during any of three strands to the pre-application consultation that must be carried out, namely:

(a) when the promoter asks it to comment on a draft 'statement of community consultation' (how it proposes to consult the people living near the proposed project)

(b) when it commences pre-application consultation with the named list of organisations that include local authorities, or

The Act does not set out which stage comes first, and there is not yet any consensus as to what order the duties should best be carried out in.

Having said that, promoters would be well advised to engage with local authorities before that formal stage, and so local authorities should be made aware of forthcoming applications earlier. Local authorities can also check the list of anticipated projects on the IPC's website (http://infrastructure.independent.gov.uk/?page_id=202), remembering that they will be involved even if the project is in a neighbouring authority rather than their own.

The extent of the involvement of neighbouring authorities is not something that is widely appreciated. Some of the roles that the Act gives to local authorities are only for those whose area actually contains the land for the project (which I will call ‘host authorities’) but some also involve any authority that shares a border with a host authority (which I will call ‘wider authorities’).

Given that there could be host authorities at district and county level, the number of neighbours could be quite large. I have compiled a database for land in each local authority area – the highest total of wider authorities is 39 for some parts of Hampshire and the average is 17. In what follows I identify which roles involve host authorities only, which involve wider authorities, and in the first case, involve all authorities.

National Policy Statements (all authorities)

Aside from the application process, all local authorities are consultees on the suite of National Policy Statements (NPSs) that will be used by the IPC to decide applications. The consultation period for the six energy NPSs and the Ports NPS has now passed, but five remain to be published: National Networks (road and rail) and Waste Water (imminently), Hazardous Waste, Water Supply and Airports (over the next year). This is the opportunity for local authorities to influence the way the IPC will be guided to consider applications for the relevant projects in their areas.

Locationally-specific NPSs (wider authorities)

The Airports NPS will specify sites suitable for airport development, but the others will not be location-specific. For the Airports NPS, the wider set of local authorities must be consulted on how to publicise the inclusion of the sites in the NPS so that those living nearby can comment properly (since they will not be able to object to the choice of site once an application is made). This is something that the government did not do properly in the case of the Nuclear Power NPS.

Statement of Community consultation (host authorities)

As mentioned earlier, the promoter of a project must prepare a Statement of Community Consultation (SoCC) and consult the host authorities on it. This is the local authority’s opportunity to advise the promoter on how to involve hard-to-reach communities near the proposed site for the project, and whether the overall consultation programme will be adequate. The promoter is not obliged to follow the local authority’s advice, but the local authority has a weapon up its sleeve in the form of an ‘adequacy of consultation report’ (see below).

Pre-application consultation (wider authorities)

The promoter must consult widely on its proposals before it can make the application itself, and the Act is designed to ensure that it takes the results of the consultation into account. This strand to the consultation is where identified organisations are notified and invited to respond, rather than the more general publicity and open invitation to respond that the SoCC involves.

EIA scoping report (wider authorities)

All projects under the Act are assumed to require environmental impact assessment (EIA) unless the IPC informs the promoter that it is not needed. The promoter then has the option to ask the IPC for a ‘scoping opinion’ on what its Environmental Statement (ES) should contain. The IPC must consult the wider list of authorities for their opinions on what the ES should contain.

Adequacy of consultation report (wider authorities)

If a local authority is unhappy about the adequacy of the promoter’s pre-application consultation (or happy about it, if it is so moved) it may submit an ‘adequacy of consultation report’ to the IPC setting out any issues it had with the consultation – although this is limited to the scope of the consultation rather than whether the responses were properly taken into account. This report must be made to the IPC before it decides whether it accepts the application, although it is not clear how the local authority will know whether the application has been made, or whether the promoter consulted the right named organisations.

Representations on application (wider authorities)

When an application is made to and accepted by the IPC, local authorities can submit their own objection (or supporting representation) to the IPC within a 28-day period. This is likely to reveal the local authority’s attitude – as supporter or opponent – rather than the Local Impact Report (see below), which is intended to be more factual in nature. Extra safeguards appear in the Act should a local authority object to its own land being compulsorily acquired for a project.

Local Impact Report (wider authorities)

By a deadline to be set by the IPC in each case, but recommended by the government to be about six weeks after the ‘preliminary meeting’ (the new equivalent to a pre-inquiry meeting), local authorities are invited to submit a ‘Local Impact Report’ to the IPC. This is the subject of an advice note published on 26 March on the IPC’s website (http://infrastructure.independent.gov.uk). LIRs are not supposed to replicate ESs (but presumably may point out anything that the local authority disagrees with), and so are more likely to concentrate on other impacts, namely social and economic ones. The IPC invites local authorities to say what weight it gives to the impacts it lists, but not to give an opinion on whether the negative impacts outweigh the positive ones (which is the IPC’s job).

Ability to force a hearing (wider authorities)

The Act presumes against the holding of oral hearings into applications, and states that the default procedure is the consideration of written representations only. That is more likely to be honoured in the breach, however, as any ‘interested party’ can require the IPC to hold an open-floor hearing. The wider authorities come within the definition of interested party, whether or not they objected to the application.

Approval of requirements (host authorities)

Something that is not mentioned explicitly in the Act but on which DCLG guidance provides more detail is that local authorities may be charged by the IPC with the job of approving details that are given as ‘requirements’ (the new word for conditions).

s106 agreements (host authorities)

The Town and Country Planning Act 1990 has been amended so that agreements concluded under section 106 of that Act (relating to promoters mitigating the impact of their projects on the local infrastructure, usually financially) can be secured for projects covered by the Planning Act as well. The recent government guidance encourages local authorities to comment on anything that a promoter suggests should be in a s106 agreement when it makes its application, as well making their own suggestions.

Policing of Planning Act regime (host authorities)

Finally, the job of policing the regime falls upon local authorities. Where there are two tiers of authority, it is the district council that has the policing role for all types of project except hazardous waste projects, in which case it is the county council. Knowledge of the thresholds set out in the Act will be important for a local authority to know whether a project that comes within the new regime is being built without permission or in excess of permission.

The enforcement regime is the reverse of that for planning permission. With planning permission, no offence is committed until a landowner fails to abide by an enforcement notice. With consent under the Planning Act, it is an offence to build a project covered by the Act without any or without adequate consent, but there is no subsequent offence should the local authority take enforcement action. Failure to abide by an enforcement notice only allows the local authority to intervene and deal with the matters in the notice (such as removing the development) at the landowner’s expense.

Finally, note that with a few exceptions, the Act does not ‘deem’ permission under existing regimes, it simply provides that no permission need be obtained. This is true for planning permission, conservation area consent and listed building consent. Thus local authorities cannot take enforcement action under existing legislation.

Angus Walker is a partner at Bircham Dyson Bell. He maintains a blog on the implementation of the new regime at http://www.bdb-law.co.uk/blog.