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Implications of New Planning Act 2008

10 February 2009

Under the newly-created Planning Act 2008 a new body called the Infrastructure Planning Commission (IPC) - made up of experts appointed by the Secretary of State - will now be responsible for making planning decisions on major infrastructure projects.

Known as nationally significant infrastructure, these projects apply to development and construction relating to energy production; storage and distribution; highways; airports; harbours; water supply and treatment and hazardous waste. The act also introduces the controversial Community Infrastructure Levy (CIL) - a tax levied according to the nature and size of new developments.

Andrew Gough, partner and head of commercial property at leading regional law firm Furley Page, comments: “The act creates an integrated planning system for major infrastructure that enables big decisions to be made in under a year and also give people three chances to be heard rather than just one. But there is no appeal against a decision by the IPC other than by judicial review.”

A three-stage consultation process requires
 

  • public consultation on draft national policy statements
  • at the pre-application stage, promoters to consult relevant local authorities and communities on project proposals. At the examination stage anyone who registers an interest can trigger an open-floor hearing. All interested parties will have a right to be heard and where a commission calls a hearing to probe a specific issue, interested parties will have a right to be heard at that hearing, too.
  • Applicants must prepare a statement (in consultation with the local authority) explaining exactly how they will consult the community about a proposed application. The statement will then be published in the local newspaper.

Applicants wanting to undertake nationally significant infrastructure projects must first apply to the IPC for what will be called development consent orders which hopefully will provide the necessary permission and consent, says Andrew – the idea being that the ‘one-stop shop’ will streamline the system.

Applications will be determined by a series of national planning statements. Eleven are planned including those relating to harbours, rail-freight, water, waste and airports. Preferred or designated locations might also be named for certain developments.The Government will set out the case for infrastructure in each statement, taking into account social, environmental and economic policies.

New CIL (Community Infrastructure Levy) regulations not only indicate how the levy itself operates but also how it relates to existing planning mechanisms such as planning obligations. Essentially, explains Andrew, a charging authority – the local authority in most cases – will publish a document outlining the formula for the setting of the charge. This could cover:

  • roads and other transport facilities
  • flood defences
  • schools and other educational facilities
  • medical facilities
  • sporting and recreational facilities
  • open spaces
  • affordable housing (unless covered by S106 agreements)

Once this is in place, the CIL will be applied to most operational development. Some development might be exempt.

The CIL will sit alongside the current S106 agreements which will still be used to provide security for specific operational and technical work on site – and even affordable housing arrangements.

Andrew warns that there may be inconsistencies when applying the CIL as approaches will vary from council to council.
 
For further information contact Andrew Gough.

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