Planning Act Blog 172: Further Delays To Nationally Significant Infrastructure Projects.
This is entry number 172, first published on 6 October 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.
Today's entry reports on delays to applications and the possible reasons for these.
It has been compulsory for applications for sixteen types of infrastructure project above a specified size in England, five in Wales and one in Scotland to be made to the Infrastructure Planning Commission since 1 March 2010. Nevertheless, seven months later only six projects have started their formal pre-application process, and only one application has successfully been made. Why?
The IPC publishes dates of when it expects to receive applications, based on information supplied by project promoters. These dates have been gradually slipping back. The latest casualty is a biomass plant in Hull, which was due to be made on 1 October, but there is no sign of it yet. Having said that, this apparent slippage may just be a feature of the way dates are shown: '1 October' could in reality just mean 'October'.
Even once an application has been made and accepted, there is one further opportunity for delay by the promoter. This is because the next step is for the promoter to publicise that the application has been accepted, which kicks off the objection period. There is no set timescale for this - if the promoter was in a hurry it could do this two or three days after the IPC had told it that the application had been accepted, but it could wait longer if it so chose. Indeed, the only accepted application was accepted on 26 August, but the promoter has yet to publicise this, nearly six weeks later.
Once that step happens, then the timing of the process is out of the promoter's control. After the objection period ends, the IPC should call a 'preliminary meeting' (planning inquiry regulars will know this as a 'pre-inquiry meeting', but since inquiries are discouraged, the Planning Act doesn't call it that). There is no fixed timescale for that either, but government guidance recommends that the meeting is held no later than six weeks after the end of the objection period.
Once the preliminary meeting has been held, then the application is on a fairly unstoppable conveyor belt. The examination of the application must take no more than six months from the date of the meeting, and if the relevant National Policy Statement (NPS) is in place, the IPC must decide the application within nine months of the meeting. If there is no NPS, then the IPC has nine months to make a recommendation to the government, who then have a further three months to make a decision.
So why has every project so far slipped past its original date? One reason is that, as I have said before, every project slips, except perhaps those with an immovable deadline like the Olympic Games. 'Optimism bias' is now regularly added to cost estimates for projects, perhaps it should apply to timings too. Before the Planning Act and the IPC came along, application dates were seldom announced in advance, and so the slippage that occurred was private. Delays for this reason are therefore not down to the new regime.
A second reason is implicit in the above text: once the acceptance of the application has been publicised, the timing of the process is out of the promoter's control. Project promoters will want to be absolutely sure that they have all their ducks in a row before they relinquish control over the project timetable, and to continue the fairground analogy, get on the application examination rollercoaster. That reason is a new one caused by the fixed timescales in the Planning Act. Few would argue that they are a bad thing, as they are one of the key features of the Act designed to speed up the authorisation process.
A third reason is the new and onerous requirement for much work to be carried out before an application is made, and promoters are underestimating how much time this takes. Again, this is a deliberate feature of the new system - partly, it must be said, so that the clock only starts running once a lot of the work has been carried out, but partly because applications are likely to be better (cheaper, faster and more likely to succeed) if potential objections have been flushed out and addressed before they have been made.
A fourth reason is that in the energy field at least, several applications were made in the weeks before 1 March to avoid the uncertainty of the new regime, which has probably given rise to a gap in timing.
Finally, this is a new process and promoters and the IPC are finding their feet. Routine, familiarity and precedent are all likely to reduce the time taken for the pre-application process. Not only is the process onerous, but there are several strands to it and no clear preferred order of doing things has yet emerged. Once this particular wheel has been invented, projects should start to speed up. This should pay dividends in the long run, given that the same process applies to a diverse range of projects, which were previously subject to several different consent regimes.
Previous entry 171: IPC reaches memorandum of understanding with WAG
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Mr Angus Walker
Bircham Dyson Bell LLP
Tel: 207227 7000
Fax: 207222 3480
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