932: What we really think of the Planning Act 2008 regime

Today’s entry reports on BDB Pitmans’ response to the consultation on the Planning Act 2008 regime.

The National Infrastructure Planning Reform Programme consultation, launched by the Department for Levelling Up, Housing & Communities, has now closed.

We thought you would be interested in seeing what we really think about the Planning Act 2008. Our full response is here but here are some highlights.

First, we’ve suggested a statutory presumption on the minimum length of the pre-examination period. This is not a fixed timescale in the way the (six month) examination, (three month) report and (three month) decision stages are fixed. Rather, we think the presumption of a minimum three month period would be helpful in tandem with another one of our suggestions:

‘… we suggest that paragraph 114 of the government’s guidance on the pre-application process is amended to include reference to the Inspectorate considering whether a deficiency or unresolved matter could be addressed in the pre-examination period including prior to the start of a representation period notified under section 56 of the 2008 Act.’

We acknowledge there are countervailing considerations on whether there should be a fixed statutory timescale for the pre-examination period. On the one hand, it would provide greater certainty but on the other some projects require a relatively longer pre-examination period to resolve particular matters. Nonetheless, a presumption would allow for consideration of whether a deficiency could be resolved in the pre-examination period in line with our suggestion above.

Second, we suggest a formal procedure is introduced to allow promoters to make applications for shorter (or longer) applications. This is to acknowledge that there is no ‘one size fits all’ examination period for DCO applications

Third, we suggest the creation of a new statutory requirement that two months following the provision of the ExA’s report, the Secretary of State must consider whether any queries ought to be raised at that point so that promoters and interested parties can comment on a matter before the three month period expires. This might obviate the need for an extension. In this context, given a number of recent delays, we also suggest that there should be guidance published on the process and relevant considerations in the post-examination, decision stage to give further certainty on exactly what the Secretary of State intends to do.

Fourth, in order to avoid protracted discussions about particular matters in the examination – thereby increasing the costs for both promoters and stakeholders – we suggest that the ExA could at an appropriate point close down an issue when satisfied that they have sufficient information for their purposes. Whilst the ExA provides a ‘preliminary list’ of matters to be examined, this could helpfully be updated, say, three months into the examination phase.

Fifth, we have suggested increasing the list of consents which can be included in the ‘one-stop-shop’ that is the DCO process, an opportunity to comment on the ‘final DCO’ (to avoid the need for correction orders), reforms to special parliamentary procedure and much more.

Please do read the whole thing which contains much more. We will see if the Government agrees with us in due course!

Other news

It is now looking very likely that the decision on the Aquind Interconnector will be judicially reviewed.

In re-determination news, three of the four projects subject to redetermination (Manston Airport, A303 Stonehenge and Norfolk Vanguard) have had responses from the promoters and stakeholders published, with the ball in the Secretary of State’s court on whether they ask any further questions, or whether they make a decision. A consultation on the fourth, the A38 Derby Junctions project, ends on 4 February 2022. Watch this space.