Clear-up of Planning Act 2008 anomaly will boost infrastructure development, says expert

Out-Law Analysis | 20 Dec 2012 | 4:26 pm | 2 min. read

OPINION: The clearing up of confusion over variations to permissions for major infrastructure projects by the Government will remove developer fear of triggering the need for a development consent order (DCO).

Confusion arose about how permission for nationally significant infrastructure projects (NSIPs) is administered when the Government published plans for a Growth and Infrastructure Bill in October.

A requirement was introduced on 1 March 2010 for developments classed as NSIPs to go through the process of obtaining a DCO. This was set out in the Planning Act 2008. The DCO requirement did not apply to developments that would have fallen in the category of NSIPs and which were approved before 1 March 2010.

What has not been clear, though, is what happens to NSIPs that were approved before March 2010 but which are later amended? Do these require DCOs?

A later version of the Growth and Infrastructure Bill now proposes to cleare this up. If the Bill is enacted in its current form, then variations to NSIPs with pre-March 2010 permissions can now be made without fear of triggering the need for a DCO. 

Imagine, for example, a promoter of an electricity generating station. Before the Planning Act 2008 any promoter of a generating station with a capacity of 50MW or more had to apply to the Secretary of State for a Section 36 consent under the Electricity Act 1989 and at the same time ask the Secretary of State to grant deemed planning permission under the Town and Country Planning Act 1990 (TCPA). Following approval of this application, if the promoter wanted to make a material amendment to the deemed planning permission then an application was made to the relevant local planning authority under section 73 of the TCPA. A successful application under section 73 produced a new planning permission for the development. 

This is what causes the problem. If a promoter who has the benefit of a deemed planning permission for what would now be an NSIP that was granted, or the application made, before 1 March 2010 now wants to make a material amendment to that permission, it is arguable that a DCO is required even though the NSIP is already consented. This is because an application under section 73 of the TCPA is an application for planning permission for an NSIP and is being made after 1 March 2010. As such, it is arguably not carved out of the Planning Act 2008 requirements as the Saving Order talks in terms of applications made before 1 March 2010 only. 

The DCO process was designed to simplify the planning process, so this situation was not ideal. The uncertainty has caused confusion which does not help with the Government's energy and growth agenda.

The Government has inserted into the Bill a clause that would introduce a new section 237A into the Planning Act 2008. This new section, which has retrospective effect from 1 March 2010, provides that a DCO is not required for a variation or a replacement to a permission granted, or the application for permission made, pre 1 March 2010.  What this means in practice is that a holder of a deemed planning permission for what is now an NSIP whose permission was granted or applied for before 1 March 2010 will be able to make an application under section 73 of the TCPA to modify the permission without the uncertainty of whether or not an application for a DCO should be made

This is an amendment that was urgently required, and the Government has responded to the concerns of industry, granting developers of existing schemes certainty and potentially unlocking investment for those stalled NSIPs that were granted permission before the Planning Act 2008 had effect.

Richard Griffiths is a planning law expert at Pinsent Masons, the law firm behind