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22 October 2019

843: Miscellaneous infrastructure planning news

Today’s entry reports on miscellaneous news about the Planning Act 2008 regime.

On 17 October, the latest National Policy Statement (NPS) was ‘designated’, the word used in the Planning Act 2008 for an NPS’s adoption. This was the National Policy Statement for Geological Disposal Infrastructure. The announcement in Parliament can be found here.

As the announcement says, this is the government’s policy for burying nuclear waste underground. Any project to do so would be considered a nationally significant infrastructure project, as would creating boreholes for testing suitability. It is the twelfth NPS to be designated.

That was also the first day of a challenge in the Court of Appeal to the designation of the next most recent NPS to be designated, the Airports National Policy Statement. Lord Justices Lindblom, Singh and Haddon-Cave are hearing the four challenges from local authorities, Friends of the Earth, Plan B Earth and Heathrow Hub, and the corresponding defence, over six days ending on Thursday 24 October. For those interested the hearing is being live-streamed at this link.

In other news, having consulted on how battery storage should best be captured by the Planning Act 2008 regime, the government is now consulting on taking it out of the regime (along with other forms of electricity storage except for pumped storage, where water is pumped up a hill during the night and let down during the day to create electricity), although storage over 50MW combined with another form of generation would remain in the regime. The consultation document can be found here and the consultation closes on 10 December, a draft of the statutory instrument giving effect to the proposed change can be found here.

Finally, the Environment Bill has been laid before Parliament and can be found here.

As well as setting up a UK regulator, the Office for Environmental Protection, with the objective of protecting and improving the natural environment, it also enshrines the principle of ‘biodiversity net gain’ into law for town and country planning. It does this by (in Schedule 15) adding a condition to all new planning permissions (although there can be exceptions) as follows:

Every planning permission granted for the development of land in England shall be deemed to have been granted subject to the condition in sub-paragraph (2).

(2) The condition is that the development may not be begun unless:

  • the developer has submitted a biodiversity gain plan to the planning authority (see paragraph 2); and
  • the planning authority has approved the plan (see paragraph 3).

This does not – yet – apply to infrastructure planning covered by the Planning Act 2008. In fact, I question whether an application for a Development Consent Order can authorise net gain as the law currently stands, given that the authorisation must relate to the nationally significant infrastructure project and no more.

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