1013: How should local plans consider nationally significant infrastructure projects?

Today’s entry looks at precedents on the consideration of DCO projects in the context of local plans.

Round these parts

The starting point for any DCO application is that it should be decided in accordance with a National Policy Statement (where one has effect), or if there is no relevant National Policy Statement, it must be decided in accordance with section 105 (ie bearing in mind important and relevant matters). Local plans are therefore lower in the planning policy hierarchy, especially in the former category. But what about the slightly converse situation: how should local plans deal with NSIPs in their patch?

The starting position there is section 39 of the Planning and Compensation Act 2004 which establishes the legal framework for the preparation of local plans. Section 19(2)(a) of that Act sets out that in preparing a local plan, a local planning authority must have regard to national policies and advice contained in guidance issued by the Secretary of State. National policies are not defined but no doubt they include National Policy Statements. Indeed, a really useful example of considering this very issue is the Sedgemoor Local Plan proceedings.

The new nuclear power station at Hinkley Point C was likely to be developed during the lifespan of the Sedgemoor Core Strategy. The council took the approach of setting out general policies that it would need to take into account as a statutory consultee in relation to NSIP applications, rather than referring to the impacts of Hinkley specifically. Hinkley was referred to specifically in Policy MIP2 in the context of associated and ancillary development where the Council would be the decision maker. The Inspector did not however, agree with the Council’s approach completely and found the chapter as submitted not to be sound, stating:

‘Chapter 4, in setting criteria for the consideration of HPC as an NSIP as well as other MIPs, assumes a status above that accorded by the 2008 Act and the relevant NPSs. In this respect therefore, the CS does not accord with national policy.’

It was fine to shape matters relating to the Local Impact Report, but it could not make plans or policies relating to the NSIPs themselves. An amusing saga in a similar vein is Policy T7 of the London Plan. The Inspector found that a proposed policy relating to aviation conflicted with the Airports National Policy Statement. It was therefore recommended to be removed. However, by the time it came to the decision, it fell between the Court of Appeal and Supreme Court. The Court of Appeal had quashed the NPS, and so the Mayor was able to re-include Policy T7 as it no longer conflicted with national policy. If that decision had waited until the Supreme Court’s reversal, that policy would not be there!

How does this manifest itself in the context of specific projects? Well, one relevant example is Anglesey and Gwynedd Joint Local Development Plan 2011-2026. There were two proposed NSIPs at pre-application stage at the time of the plan being drafted. One being a nuclear power station (may Horizon’s proposals rest in peace), identified in the NPS and the second being improvements and new transmission lines. The Joint Local Development Plan (JLDP) set out an overarching policy, PS8, relating to any NSIP application, including associated or ancillary development. Prior to examination, the JLDP specifically states that PS8 does not relate to any NSIP application for development at Wylfa Newydd, or development proposals that are associated or ancillary to that application. Did this survive? No! As the Inspector’s report sets out:

‘The policy framework for determining the DCO application is set out in National Policy Statements (NPS), including NPS EN-1 for Energy and EN-6 for Nuclear Power Generation. The JLDP will be used to inform the Council’s Local Impact Report (LIR) which forms part of the DCO process and may be a material consideration in the determination of a DCO application. However, for such an application, the Plan would not have the status which is afforded to it under the Town and Country Planning Act (TCPA) 1990. To reflect this situation more accurately the Councils have proposed a series of changes to the Plan. These changes are necessary to ensure that the Plan does not wrongly imply that its status is elevated above that which the 2008 Act provides.’

Another interesting example is Aylesbury Vale District Council’s (AVDC) Local Plan. That plan had to consider HS2 Phase 1, the East West Rail Transport and Works Act Order and the proposals for the Oxford to Cambridge expressway (now canned but which was awaiting a preferred route announcement decision at the time the plan was produced). The Inspector stated that he was ‘severely troubled’ by AVDC’s approach to its Local Plan which envisaged it would need to be reviewed soon after adoption as the Government’s decision on the Oxford to Cambridge expressway was due to be announced.

In contrast, AVDC had dealt differently with the impending closure of RAF Halton in its Local Plan, which the Inspector found encouraging. AVDC defended its decision to address the RAF Halton closure and not the Oxford to Cambridge expressway proposals by stating:

‘While there may be some uncertainty over the exact process for closure and all parties still await further detail, we cannot afford to ignore Government announcements and any development potential that results from them. It is after all better to plan positively for change rather than suffering the effects of an ad-hoc approach to the probable redevelopment of the camp.’

The Inspector responded to say the same sentiments applied with equal force to the announcements about the Oxford to Cambridge growth arc. He noted that to be sound, a plan must be positively prepared and went on to say ‘predictable events should be planned for.’

So what’s the conclusion? Local policies must take effect subject to both national policies like National Policy Statements but also projects which are clearly reflective of government policy (either in a national policy statement, or via Government announcements like Road Investment Strategies or Integrated Rail Plans).

I thought I’d dig back into this issue because of the recent debates about the Levelling Up and Regeneration Bill. In the context of how planning applications are to be decided there has been a debate about whether ‘national development management policies’ should have a higher status than local development plans. It seems the Government’s proposals – ie that NDMP will prevail over local plans where there is a conflict – have mostly survived. The debates highlighted above may therefore become increasingly relevant.