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12 October 2018

809: Has the Planning Act 2008 worked?

Today’s entry assesses whether the Planning Act 2008 regime could be considered to have ‘worked’, after ten years since it was given royal assent.

I was given the privilege of addressing the Joint Planning Law Conference in Oxford this month, prompted by the tenth anniversary of the Planning Act, and I chose for my subject ‘Ten years on: has the Planning Act 2008 worked?’. Here is a short summary of what I said – if you want fuller details you should have gone to the conference, although a paper accompanied my talk and it will be published in due course in the Journal of Planning and Environmental Law, as happens to all the speakers’ papers. There were a number of excellent presentations, one of particular relevance to infrastructure projects being on air quality, by Katie Nield of ClientEarth.

So, has the Planning Act 2008 worked? I’ll tell you at the end. I first considered what attributes of a legal regime should be measured to decide whether it has worked. You may have other suggestions, but mine were:

  • Stability: has the regime remained reasonably constant over time?
  • Certainty: do promoters know what is likely to get consent before making their applications?
  • Attractiveness: where they have had the option, have developers chosen to use the regime or to avoid it?
  • Timings: have decisions been delivered as efficiently as envisaged?
  • Validity: have projects and decisions survived legal challenge?
  • Participation: do the public get a fair say?
  • Delivery: are projects being built that have used the regime?

Stability

An example of a regime that has not remained stable is the Community Infrastructure Levy, also introduced by the Planning Act 2008. Amending regulations were made in 2011, 2012, 2013, 2014, 2015 and 2018, so far – hardly a hallmark of success.

The only significant change to befall the Planning Act regime was the abolition of the Infrastructure Planning Commission in 2011, which made applications three months longer and returned decision-making to the Secretary of State. There have been regular tweaks, and a few changes to the thresholds that decide whether a project must use the Act, and a few new categories have been brought in, but the regime has remained largely the same as when it was introduced.

So it gets a tick in the stability box – any more stable and it wouldn’t be responding to experience.

Certainty

National Policy Statements (NPSs) and the requirement for pre-application consultation both mean that applicants have a pretty good idea of what will get consent (and what won’t) when they come to put their applications in. The figure of 94% of applications being consented of those that are decided is evidence of this.

The NPSs are getting out of date, however, and should be revised to reflect policy (eg coal-fired power stations are now contrary to government policy yet ‘urgently needed’ in the overarching energy NPS), experience of the regime (has the particular wording of NPSs been a help or hindrance in practice?), and changes in technology (tidal and solar projects are in the offing yet not covered by the renewable energy NPS, for example).

A tick in the certainty box, although it will turn into a cross if the NPSs aren’t updated soon.

Attractiveness

Most projects don’t have a choice as to whether to use the regime, but those near a threshold could be designed to come just above or just below it. Others have the ability to opt into the regime even though they are below the threshold.

Although a few projects have opted into the regime (the latest being an electricity interconnector), there is evidence that others are avoiding it (just search on google for 49.9MW projects for example).

Although the regime is regarded as worth it for very large projects, for smaller ones that are supported by the relevant local authority and don’t require compulsory acquisition, it is likely to be more trouble than it is worth in terms of time and expense.

Probably a neutral blank in the attractiveness box, then.

Timings

The certainty of timings that the regime introduced once an examination into an application has started is one of the big advantages of the regime. On the day of the Preliminary Meeting you pretty much know you will get a consent up to a year later (and often exactly a year later). This is very useful for planning construction, sorting out funding and so on.

While the Planning Inspectorate has a near-100% record for sticking to its timings, the various Secretaries of State have started backsliding a bit in meeting their three-month decision deadlines. Of 16 decisions issued since July 2016, six were delayed, whereas only one of the previous 50 decisions was delayed.

So a tentative tick in the timings box, but the government needs to pull its socks up (rather than its SoCCs up).

Validity

There have been quite a few challenges to decisions and other aspects of the regime, about 15 in total. Only one has been successful, though, namely the challenge to the refusal of the Preesall gas storage project, where the refusal was quashed and the decision retaken, the other way the second time.

Challenges are inevitable given the high-profile and controversial nature of some infrastructure projects, but the regime has held up well.

So a tick in the validity box.

Participation

Those that complain that the planning process is too slow often overlook the necessity of projects being acceptable to the public they will affect. Developers’ relationships with objectors continue long after the grant of a DCO and into the construction and operation of the project in question, and acceptability by the public is thus a vital factor, and they must feel they have been listened to, if not necessarily agreed with, during the consenting process.

Compulsory consultation and the ability to cause an open floor or compulsory acquisition hearing are on the plus side, as is the practice of examining authorities putting objectors’ concerns to project promoters themselves, which levels the playing field somewhat.

Given that public funds are never going to be made available for objectors to obtain their own expert advisers, the regime does improve participation compared with what has gone before and there is probably not much more that could be done. One area that could be improved is the accessibility of the Inspectorate website, particularly for first time users. Documents are often presented in an apparently random order (even in examination libraries, although these are better), and their sheer numbers must be daunting for someone unfamiliar with the regime. Some sort of tutorial to finding one’s way around an application webpage would be helpful.

So a tentative tick in the participation box, although improvements could be made.

Delivery

Finally, all this is of naught if projects aren’t actually getting built. Are they?

NIPA research a couple of years ago found that of 50 projects then consented, only seven had been built – five transport, one waste and one energy project. A further 13 were under construction but the remaining 30, or 60%, had not started at all or had in some cases been abandoned, and that was after the regime had been in operation for 6 1/2 years.

Now I accept that the reasons for that are not necessarily linked to the DCO process, as projects are often significantly affected by changes in policy and funding issues (although planning delays can cause the latter), but I nevertheless think it has played its part in projects not being built.

The relentless drive for detail has meant that DCOs have needed to be changed quite frequently, although no-one has yet taken the plunge to make a material change to one, suggesting that process is off-putting. The number and nature of requirements (equivalent to planning conditions) contained in DCOs can also hinder deliverability.

More investigation into why consented projects have been delayed (even ones that have eventually been built) would be useful to fully understand whether the regime could be improved to address this.

I am therefore controversially going to put a cross in the delivery box.

All in all, then, I think the regime has worked well in terms of delivering consents efficiently, but there is some work to do to ensure that what it is delivering allows projects to be built.

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