National Infrastructure Planning Handbook

Preface
Contents
Contributors
Table of Cases
Table of Statutes
Table of Statutory Instruments
Part 1 The Examining Authority and the Secretary of State
1 The Planning Inspectorate
2 The Appointment and Composition of the Examining Authority
Introduction
Criteria for determining how an application should be handled
Transfer of the application from a single appointed person to a Panel
Appointment and replacement of Panels and single appointed persons
The functions of the Examining Authority
Appointment of assessors and advisors
3 The Role of the Examining Authority
Introduction
Panel
Single appointed person
Examination of the application
4 The Legal Status of the Secretary of State in Litigation
Part 2 National Policy Statements
5 General Procedural Requirements for Designation of an NPS
Introduction
Publicity and consultation
Parliamentary scrutiny
Sustainability
Designation as an NPS
Review and amendment of an NPS
6 NPSs and the Requirement for an Appraisal of Sustainability
The nature and effect of NPSs
The need for an assessment of sustainability
What is required by way of sustainability appraisal?
The need for Habitats Regulations Assessment ('HRA')
Taking account of climate change
7 NPS Consultation and Amendments
Introduction
Legal framework
Changes to proposals as a result of consultation: when is a further round of consultation needed?
What are the consultation and publicity requirements?
General legal principles relevant to publicity and consultation
Legal challenges arising from consultation
Practical matters
8 Context for the Identification of Need in NPSs
Introduction
The legislative framework relating to the identification of need
9 The Identification of Need in the Energy NPSs
Introduction
EN-1: Overarching Energy
EN-2 to EN-6: the technology-specific energy NPSs
EN-3: Renewable Energy Infrastructure
EN-4: Gas Supply Infrastructure and Gas and Oil Pipelines
EN-5: Electricity Networks Infrastructure
EN-6: Nuclear Power Generation
10 The Identification of Need in the Non-energy NPSs
Introduction
Ports NPS
Waste Water NPS
Hazardous Waste NPS
National Networks NPS
Airports NPS
Geological Disposal Infrastructure NPS
11 The Status and Role of NPSs within the Planning Act 2008 Regime
Introduction
PA 2008, s 104: the primacy of the NPS
PA 2008, s 106: restricted challenge to NPS policy
Suspension
12 Legal Challenges to NPSs
Introduction
When does PA 2008, s 13 apply?
The effect of PA 2008, s 13
Effect of a challenge
Challenges to date
13 Section 6 Reviews of NPSs
Introduction
Part 1: A closer look at section 6
Part 2: Section 6 in context
Part 3: Section 6 in the courts
Part 3 Nationally Signifi cant Infrastructure Projects
14 General Characteristics of an NSIP
Nature of development
Scale of development
15 Generating Stations
Introduction
The thresholds for a generating station to fall within the PA 2008
Construction of a generating station
Extension of a generating station
Conclusions
16 Offshore Generating Stations
Introduction
Statutory requirements for NSIP classification
Marine licence
Associated development
17 Offshore Projects – Defining 'Offshore'
Introduction
The definition of 'offshore'
Waters in or adjacent to England and Wales up to the seaward limits of the territorial sea
Renewable Energy Zones
18 Electric Lines
Introduction
Some issues
Good practice
19 Highways
Introduction
Construction, alteration and improvement of highways: definitions
Relevant criteria for the construction, alteration or improvement of highways
The location of the highway and the requirement for the Secretary of State to be the highway authority
The application of size thresholds to development consisting of the construction and alteration of highways
The need for significant environmental effects for development consisting of the improvement of a highway
Alteration of a highway that is necessary as a result of development with planning permission
Effect of requirement for development consent on certain statutory orders under the Highways Act 1980 and the New Roads and Street Works Act 1991
Limited exemption from the requirement for development consent where certain statutory orders under the Highways Act 1980 or the New Roads and Street Works Act 1991 have already been made
Associated development
NPS for National Networks
20 Harbour Facilities
Introduction
Harbour facilities
Effect of the Wales Act 2017
Harbour NSIPs
21 Railways
Introduction
'Construction' versus 'alteration'
Statutory requirements for NSIP classification
Development to be consented
Policy
22 Rail Freight Interchanges
Introduction
What is a rail freight interchange?
Threshold requirements and other criteria
Alterations to an RFI
The inclusion of other uses within an RFI application
DCOs granted for RFIs and alterations to RFIs
23 Hazardous Waste Facilities
Introduction
Commencement
Thresholds and geographical issues
Definitions within PA 2008, s 30
NPS for Hazardous Waste
The King's Cliffe application
Part 4 Requirement for Development Consent
24 When Development Consent is Required
Introduction
The requirement for development consent
25 Secretary of State's Direction that a Project is of National Significance
Introduction
Section 35 directions
Procedure
Timetable for deciding a section 35 request
The effect of a section 35 direction
Examples of directions to date
26 Business and Commercial Development
Introduction
The timetable for the amendments
The new PA 2008, ss 35, 35ZA
Geographical scope of the provisions
Types of business and commercial development
Establishing national significance
Exclusions from the new provisions
National Policy Statements
Opting-in to the PA 2008 regime
Making a "qualifying request" - procedure
Preparing an application for development consent following a PA 2008, s 35 direction
PA 2008, s 35 directions for business and commercial development
27 Related Housing Development
Introduction
The law
The DCLG Guidance on NSIPs and housing
Comment
28 Pre-application Project Development
Introduction
Part 1: The importance of pre-application project development under the PA 2008
Part 2: Governing and documenting the process
Part 3: Involving others in the process
Part 5 Pre-application Procedures
29 Legal Requirements for the Statement of Community
Introduction
Preparing the SOCC
Publicising the SOCC
Consulting in accordance with the SOCC
Revisions to the SOCC
30 Section 42 Consultation
Introduction
Who must be consulted
Timetable for consultation
Duty to notify the Secretary of State
31 General Principles relating to Consultation
Introduction
The duty to consult
Fundamental rules of proper consultation
Unlawful consultations
32 Section 48 Publicity
Publicity requirements
Timing of pre-application publicity
Feedback on PA 2008, s 48 publicity
33 Taking Consultation into Account
The requirements of PA 2008, s 49
DCLG Guidance
PINS Advice Note
General case law on taking consultation into account
Changing a proposed project in response to consultation
Part 6 Information and Surveys
34 Obtaining Information about Interests in Land
Introduction
The purpose of PA 2008, s 52 and the time at which it may be used
The requirement for the Secretary of State's consent
PA 2008, s 52 as a 'last resort'
Consultation
Types of PA 2008, s 52 notice
The form of notice and period for response
Failure to comply with a notice
Other statutory powers for obtaining information about interests in land
35 Rights of Entry
Introduction
The power
The requirement for the Secretary of State's consent
The exercise of a power of entry under PA 2008, s 53
Compensation
Crown land
Other powers of entry for the carrying out of surveys etc
Part 7 Making an Application
36 Application Documentation
Introduction
The consultation report
Prescribed documents and information
Order and format of application documents
Assistance from the Planning Inspectorate
37 Prescribed Matters for Certain Types of Project
Technologies with additional prescribed matters
Onshore generating stations
Offshore generating stations
Highway-related development or the construction or alteration of a railway
Construction or alteration of harbour facilities
Construction of a pipeline
Construction of a hazardous waste facility
Construction of a dam or reservoir
Inclusion of the prescribed information within the application form
National Policy Statements
Part 8 Contents of a Development Consent Order
38 Defining the Nationally Significant Infrastructure Project
Introduction
Types of project
Statutory power to include/exclude development
Thresholds
Extent of an NSIP
39 Associated Development in England
Introduction
DCLG Guidance on associated development
Some issues
Examples of associated development
40 Associated Development in Wales
Introduction
The limits on 'associated development' in Wales
DCLG Guidance on associated development
Some examples
41 Cable Ducts for Future Projects
Introduction
The legal issue
Guidance
The East Anglia One decision
Conclusion
42 DCO Model Provisions
Introduction
The status of model provisions
The structure of the Model Provisions Order
The predecessor regimes as a basis for precedent
Drafting conventions for statutory instruments
Conclusions
43 Modern Drafting Conventions
Introduction
PINS Advice Note 15
The SI Practice
The SI Drafting Guidance
Numbers and dates
Headings
Articles
Punctuating lists
Conjunctions between paragraphs
Schedules
Cross-references
Definitions
Bodies corporate
Periods of time
Words and phrases
Conclusions
44 Limits of Deviation
Purpose of limits of deviation
Horizontal and vertical limits of deviation
Relevant statutory provisions
Approach to drafting limits of deviation
Variations in approach to drafting limits of deviation
Wind farms
Environmental impacts
Justification for the limits of deviation
45 Use of the Works
The need for statutory authority
Relevant provisions in the PA 2008
Guidance on drafting DCOs
Gas storage
Rail freight interchange
Harbour facilities
Rail
Highways
Gas pipelines
Power generation facilities
Overhead lines
Landfill
46 Defence to Proceedings in Respect of Nuisance
Introduction
Statutory basis
The scope of PA 2008, s 158
Model provisions
Guidance
Compensation
47 Streets
Street works
Stopping up and diversion of streets
Tolls / road user charging
48 Removal of other Consent Requirements
Introduction
PA 2008, s 150
The 'relevant bodies' under the Schedule
Obtaining the consent of the relevant body
Expanding and improving the 'one stop shop' approach to consents
49 The Discharge of DCO Requirements
Introduction
Drafting requirements to be discharged
The appropriate discharge authority
Appealing the discharging authority's decision
Fees
50 The Relationship between Development Consent and Marine Licensing
Introduction
Development within the UK marine licensing area
A deemed marine licence
The role of the MMO in relation to applications for development consent
DCO 'requirements' and deemed marine licence 'conditions'
Enforcement of 'conditions' in a deemed marine licence
51 Protective Provisions
The nature of protective provisions
The need for protective provisions
Protective provisions at the pre-application stage
Standard protective provisions
Negotiating protective provisions post-examination
Example protective provisions
52 Ancillary Matters that may be Included in a DCO
Introduction
Express inclusions
Relating or ancillary
Necessary or expedient to give full effect to DCO
Protective provisions
Application, disapplication or modification of statutory provisions
Byelaws and the creation of offences
53 Matters that may not be Included in a DCO
Introduction
The effect of this provision
Parallel applications
Part 9 Compulsory Purchase
54 Compulsory Purchase Powers in a DCO
Introduction
Conditions for the exercise of compulsory purchase powers
Justification for the exercise of compulsory purchase powers
Types of land
Notification requirements
Procedural requirements
55 Incorporation of the Compulsory Purchase Code
Introduction
Parts of the compulsory purchase code
Ability to modify or exclude a 'compensation provision'
Compulsory purchase provisions in DCOs
56 Extinguishment of Public Rights of Way
Introduction
General provision as to extinguishment
The provision in practice
Procedural requirements
57 Temporary Possession
Introduction
Temporary use of land for carrying out the authorised project
Temporary use of land for maintaining authorised project
Neighbourhood Planning Act 2017
58 Compulsory Purchase Compensation
Introduction
An overview of compulsory purchase compensation under the PA 2008
Some additional points
59 A Good Practice Guide to Land Referencing and Compulsory Acquisition
Introduction
Diligent inquiry: an introduction to land referencing techniques
Data management and protection
Completion of diligent inquiry
Production of the land plans and identification of compulsory acquisition requirements
The Book of Reference
Best practice and lessons learnt
60 Special Categories of Land
Introduction
Types of Special Category Land
Crown land
National Trust land
Statutory undertaker land
Common Land, Open Space, Fuel or Field Garden Allotments
61 The Land and Assets of Statutory Undertakers
Introduction
Statutory provisions
Protective provisions and agreements
Part 10Environmental Impact Assessment and Habitats Regulations Assessment
62 The Status of European Union Law in the United Kingdom following its Withdrawal from the EU
Introduction
Part A – The Withdrawal Agreement
Part B – The Trade and Cooperation Agreement
Part C – 'EU retained law'
Conclusion
63 EIA Screening
Introduction
The 2017 EIA Regulations
The principle of EIA screening
Screening pursuant to the 2017 EIA Regulations
Obligations on the decision maker as regards the screening opinion
Screening direction
64 EIA Scoping
Introduction
Procedural steps
Documents accompanying request
Form of scoping opinion
Secretary of State not precluded from asking for further information
Guidance
65 Preliminary Environmental Information
Introduction
Consulting on PEI
What information must be included
66 Preparation of an Environmental Statement
Introduction
Preparation of ES
67 Environmental Impact Assessment: Transboundary Consultation
Introduction
The law
Guidance
Discussion
68 Habitats Regulations Assessment
Introduction
The legislative framework
The process of assessment under the 2017 Habitats Regulations
Consideration by the Courts
69 A Practical Approach to Compensatory Measures
Introduction
The location, nature and scope of compensatory measures
Case study: Hornsea Project Three
Part 11 Other Application Documents
70 Explanatory Memorandum
71 Book of Reference
Introduction
Requirements
Guidance
72 Funding Statement
The need for a funding statement
The contents of a funding statement
The purpose of a funding statement
The funding statement in the examination process
Practical issues and experience to date
73 Statement of Reasons
74 Statutory Nuisance Statements
Introduction
Context and importance
Form and content of a statutory nuisance statement
75 A Good Practice Guide to Planning Statements
Introduction
Guidance
Research
Role of the Planning Statement
Content
Relationship to other DCO documents
76 Development Consent Obligations
Introduction
Incorporation of TCPA 1990, s 106 obligations within DCO regime
Modification and discharge
Law and guidance on the use of development consent obligations
Enforcement of development consent obligations
Part 12 Pre-examination, Examination and Post-examination
77 Timescales for Pre-examination, Examination and Post-examination Procedures
Introduction
Acceptance of an application
Notification of acceptance
Initial assessment and preliminary meeting
Examination
Decision
Summary of experience
78 Acceptance of an Application
PA 2008, s 55 – decisions on whether to accept an application
Notification of an accepted application
Acceptance checklist
79 Notifying Persons of Accepted Application and Relevant Representations
Notifying persons of accepted application
Deadline for receipt of relevant representations
Infrastructure Planning (Examination Procedure) Rules 2010
Time periods
80 Interested Parties
Introduction
PA 2008, s 102
PA 2008, ss 102A and 102B
Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015
Status of 'interested parties' in the examination process
Participation by those who are not interested parties
81 Local Impact Reports
PA 2008, s 60
Procedural requirements and timescales
Contents and style of an LIR
Emerging good practice
82 Initial Assessment of Issues
Introduction
Initial assessment of the principal issues
Notification of the initial assessment
Conclusion
Examples of initial assessments
83 Preliminary Meetings and Conduct of the Examination
Introduction
PA 2008
Procedural rules
DCLG/PINS Guidance
Further practical points about preliminary meetings
84 Statements of Common Ground
Introduction
The purpose of a statement of common ground
The form and content of a statement of common ground
The timing of a statement of common ground
Preparing a statement of common ground
The effect of a statement of common ground
85 Issue Specific Hearings
Introduction
Requirements
Good practice
86 Compulsory Acquisition Hearings
Introduction
Requiring a compulsory acquisition hearing
Arrangements for a compulsory acquisition hearing
The conduct of a compulsory acquisition hearing
87 Open Floor Hearings
Introduction
Procedural rules
DCLG Guidance and PINS Advice
Practice at OFHs
88 Site Inspections
Introduction
Unaccompanied site inspections
Accompanied site inspections
89 Procedures following Completion of Examination
Introduction
Reporting to the Secretary of State
Extending the deadline for the report
The Secretary of State"s decision
Extending the deadline for the decision
Experience so far
90 Decision-making where an NPS 'has effect'
Introduction
The structure of PA 2008, s 104
Decisions where there is a section 35 direction
91 Decision-making where there is no NPS
Introduction
The structure of PA 2008, s 105
Decision making under s 105
Decision making under both ss 104 and 105
Some additional points
Part 13 Correction of Errors, Changesand Revocation
92 Correction of Errors in Development Consent Decisions
Introduction
Conditions
Correction notices
Effect of a correction
Examples of correction notices / orders
Relationship with other provisions
Conclusion
93 Changes to, and Revocation of, Development Consent Orders
Introduction
Non-material changes to a DCO
Material changes to, and revocation of, a DCO
Compensation
Part 14 Legal Challenges
94 Legal Challenge to Grant of Development Consent
Introduction
PA 2008, s 118(1)
Procedural issues
Permission to bring an application for judicial review
Grounds for judicial review
Other issues during conduct of proceedings
Remedies
Costs
95 Legal Challenge to Refusal of Development Consent
Introduction
PA 2008, s 118(2)
Procedural issues
Grounds for judicial review
Other issues during conduct of proceedings
Remedy
Costs
Generally
96 Legal Challenge to Decision not to Accept Application
Introduction
PA 2008, s 118(3)
Procedural issues
Grounds for judicial review
Other issues during conduct of proceedings
Generally
97 Legal Challenge to Other Action of Secretary of State
Introduction
PA 2008, s 118(7)
Within six weeks 'beginning with' the 'relevant day'
Matters for challenge
Part 15 Enforcement
98 Enforcement under the Planning Act 2008
Introduction
Offences
Notices of unauthorised development
Injunctions
Part 16 Miscellaneous Issues
99 Amendments to a DCO Application
Introduction
PA 2008, s 114
Examination Procedure Rules
Guidance on making a change to a DCO application
100 Costs in DCO Examinations
Introduction
The power to award costs
Procedure for claiming costs
Approach taken to applications for costs
Appendix Planning Act 2008
Index