As project developers grapple with the regime of the Infrastructure Planning Commission and questions are asked of the Government’s planning reforms, Howard Bassford and Benjamin Dove-Seymour of DLA Piper UK LLP's national planning team, offer their thoughts on planning success for Nationally Significant Infrastructure Projects.
The Planning Act 2008 (PA 2008) provides promoters of major infrastructure projects with a one-stop consents shop for Nationally Significant Infrastructure Projects (NSIPs). In many ways the PA 2008 adopts better aspects of other consenting regimes: promoters can draw on past experience and existing best-practice, but they also need to adopt and understand a new and different approach.
Even though the Planning Bill will merge the IPC into the Planning Inspectorate, there are still some valuable lessons to be learned about the process, which is likely to survive the change more-or-less intact.
Sea change or all at sea?
It is old news now that the PA 2008 was introduced by the last government to try to address some of the inefficiencies perceived as being inherent in the existing (at the time) planning system. The Heathrow Terminal 5 inquiry was just one in a string of examples that showed up how unfit the system was for dealing with nationally important infrastructure projects.
Feelings about the PA 2008 system are mixed. Part of that is, no doubt, due it being new. And part of it is probably because of the uncertainty that surrounded the new system when the Conservative party was adamant that it would be abolished. In fact, the Planning Bill will not simply ditch the PA 2008. While it remains to be seen what the Government will do with the detail of changes - which will be left to statutory instruments - most expectations are that this seems more of a window-dressing exercise. The Government has already adopted several National Policy Statements as required under the PA 2008 and parliamentary time - and industry-appetite - for a whole new system is distinctly limited. And put into the context of the Government's drive to replace the existing system of guidance with the National Planning Policy Framework, it looks like the NSIP system is here to stay.
One of the chief complaints about the new system is that it is not necessarily quicker or cheaper. This might derive from the fact that the PA 2008 puts such a great emphasis on pre-application activities. However, the PA 2008 was never meant to make life easy; it is still focussed on making the right decisions. Looking back to the Heathrow Terminal 5 example, it is best to see the PA 2008 as trying to put the lid on long, expensive, and uncertain planning inquiries. Our experience of the first examination process is that the Commissioners wanted to do just that. The key, therefore, is in preparation.
Front Loading
Front-loading is a project-management buzz word that is probably used too often. However, it is one of the defining principles embodied in the IPC process and possibly represents the biggest change to the myriad of previous consenting regimes.
The emphasis in the Planning Act 2008 (PA 2008) is on refining a project before an application is made - in particular through consultation - so that the examination process is as smooth and efficient as possible. There are plenty of examples of applications under former regimes which were simply not ready for the rigours of an inquiry process - the IPC is firmly against this. In addition, many projects were assembled for an application in a consultation vaccum - stakeholders had very limited idea about proposals. Previously, there was limited expectation that differences of opinion, or changes to design, would need to be ironed out before an application was made. After all, there would be a chance to give evidence and cross-examine. That is not to say that promoters ignored consultation - such an assertion would not be fair. Many projects have over the past few years had a smooth ride principally because of the proactive and responsible approach that promoters have taken to getting stakeholders on board, if not on side.
The key difference under the IPC is that extensive consultation is no longer a matter of choice, it is a statutory requirement. Arguably, the PA 2008 and the various regulations and guidance probably do no more than codify existing best-practice. However, there are two risks in failing to understand the importance of the change: one is that an application is not accepted because of inadequate consultation. This has already happened to one project and it turned out to be a costly mistake - in terms of programme and money. And secondly, inadequate consultation will create an Achilles heel that can dog an application throughout the process, inviting unhelpful comments from those opposed to a scheme who feel that consultation has been inadequate.
It is not just a question of getting consultation right: the application must be right too. Applicants cannot rely on being able to change things once an application has been made. Indeed, the IPC has stated its view that it has no express power to accept alterations to a scheme. Further, applicants should not anticipate that their opportunity to justify their case - and undo that of their opponents - will arise with an opportunity for examination in chief and cross examination. This means that application documents must set out a case in full and objections must be full as well.
Sir Michael Pitt, now chairman of the Planning Inspectorate, has emphasised the need to "lawyer" application documents. Rather than simply promoting the work of planning lawyers, what is being driven at is that an applicant should treat its application documents as its case for the Project. The application is not merely the start of the process. It is the fruition of consultation and the basis of the examination process. Applicants should not take risks: an application needs to be as watertight as possible by making sure that it is robust and of good quality. There is no benefit and greatly enhanced risk in leaving things to chance.
Role reversal
It is worth understanding that the IPC sees the pre-application process as being driven by the applicant. It is the applicant's responsibility to comply with the requirements in the Planning Act and related guidance. Although the IPC will give advice on request, it is rarely definitive: the IPC believes that it is up to applicants to get things right.
Once an application is accepted by the IPC, the emphasis changes with the examination process being driven by the IPC. Compared to a traditional planning inquiry, the IPC adopts much more control than a planning inspector. For example, the written representation process is focussed around responding to the IPC's written questions. Similarly, the IPC will only hold hearings on areas where it considers that oral submissions will help it and even then it will identify the topics to be discussed. It will also decide when cross-examination would be helpful. Otherwise, it will rely on application documents and written representations.
This leads to a much more focussed examination process but also one that is, really, out of the applicants hands: the opportunity to influence and dominate the examination process through examination in chief and cross examination has largely gone. In a similar way, there is almost no scope to introduce new information, except where this is requested or can be done through the written representation process. As a result, much of the standard practice from traditional planning inquiries does not apply to IPC examinations.
In particular, the often sedate approach to preparing proofs of evidence and enjoying - or enduring - planning inquiries is a thing of the past when it comes to NSIPs. The standard examination period is 6 months. For promoters and their consultant teams this means pretty much six months of non-stop preparation of written representations (both answering written questions and responses to third parties) and a series of issue specific hearings. The need to commit resources and the time required should not be underestimated: it is a very intensive period.
Approached in the right way, there is much to commend the system for approving NSIPs. There are also a number of things not to take for granted. Doubtless over time a body of NSIP experience will develop among. Let's hope that Government lets this happen before changing it all again.
Howard Bassford is a partner and Benjamin Dove-Seymour is an associate in DLA Piper's national planning team (www.dlapiper.com). The team's recent projects include a resource recovery facility for Covanta Energy in Bedfordshire (the first NSIP to go through an examination under the PA 2008), the Mersey Gateway Project (a new tolled road bridge across the River Mersey), a major expansion of the Port of Felixstowe and a new post-panamax container terminal at Bathside Bay, Harwich for Hutchison Ports (UK) Limited. The team is also promoting further NSIPs, one in collaboration with Taylor Keogh.
The Planning Act 2008 (PA 2008) provides promoters of major infrastructure projects with a one-stop consents shop for Nationally Significant Infrastructure Projects (NSIPs). In many ways the PA 2008 adopts better aspects of other consenting regimes: promoters can draw on past experience and existing best-practice, but they also need to adopt and understand a new and different approach.
Even though the Planning Bill will merge the IPC into the Planning Inspectorate, there are still some valuable lessons to be learned about the process, which is likely to survive the change more-or-less intact.
Sea change or all at sea?
It is old news now that the PA 2008 was introduced by the last government to try to address some of the inefficiencies perceived as being inherent in the existing (at the time) planning system. The Heathrow Terminal 5 inquiry was just one in a string of examples that showed up how unfit the system was for dealing with nationally important infrastructure projects.
Feelings about the PA 2008 system are mixed. Part of that is, no doubt, due it being new. And part of it is probably because of the uncertainty that surrounded the new system when the Conservative party was adamant that it would be abolished. In fact, the Planning Bill will not simply ditch the PA 2008. While it remains to be seen what the Government will do with the detail of changes - which will be left to statutory instruments - most expectations are that this seems more of a window-dressing exercise. The Government has already adopted several National Policy Statements as required under the PA 2008 and parliamentary time - and industry-appetite - for a whole new system is distinctly limited. And put into the context of the Government's drive to replace the existing system of guidance with the National Planning Policy Framework, it looks like the NSIP system is here to stay.
One of the chief complaints about the new system is that it is not necessarily quicker or cheaper. This might derive from the fact that the PA 2008 puts such a great emphasis on pre-application activities. However, the PA 2008 was never meant to make life easy; it is still focussed on making the right decisions. Looking back to the Heathrow Terminal 5 example, it is best to see the PA 2008 as trying to put the lid on long, expensive, and uncertain planning inquiries. Our experience of the first examination process is that the Commissioners wanted to do just that. The key, therefore, is in preparation.
Front Loading
Front-loading is a project-management buzz word that is probably used too often. However, it is one of the defining principles embodied in the IPC process and possibly represents the biggest change to the myriad of previous consenting regimes.
The emphasis in the Planning Act 2008 (PA 2008) is on refining a project before an application is made - in particular through consultation - so that the examination process is as smooth and efficient as possible. There are plenty of examples of applications under former regimes which were simply not ready for the rigours of an inquiry process - the IPC is firmly against this. In addition, many projects were assembled for an application in a consultation vaccum - stakeholders had very limited idea about proposals. Previously, there was limited expectation that differences of opinion, or changes to design, would need to be ironed out before an application was made. After all, there would be a chance to give evidence and cross-examine. That is not to say that promoters ignored consultation - such an assertion would not be fair. Many projects have over the past few years had a smooth ride principally because of the proactive and responsible approach that promoters have taken to getting stakeholders on board, if not on side.
The key difference under the IPC is that extensive consultation is no longer a matter of choice, it is a statutory requirement. Arguably, the PA 2008 and the various regulations and guidance probably do no more than codify existing best-practice. However, there are two risks in failing to understand the importance of the change: one is that an application is not accepted because of inadequate consultation. This has already happened to one project and it turned out to be a costly mistake - in terms of programme and money. And secondly, inadequate consultation will create an Achilles heel that can dog an application throughout the process, inviting unhelpful comments from those opposed to a scheme who feel that consultation has been inadequate.
It is not just a question of getting consultation right: the application must be right too. Applicants cannot rely on being able to change things once an application has been made. Indeed, the IPC has stated its view that it has no express power to accept alterations to a scheme. Further, applicants should not anticipate that their opportunity to justify their case - and undo that of their opponents - will arise with an opportunity for examination in chief and cross examination. This means that application documents must set out a case in full and objections must be full as well.
Sir Michael Pitt, now chairman of the Planning Inspectorate, has emphasised the need to "lawyer" application documents. Rather than simply promoting the work of planning lawyers, what is being driven at is that an applicant should treat its application documents as its case for the Project. The application is not merely the start of the process. It is the fruition of consultation and the basis of the examination process. Applicants should not take risks: an application needs to be as watertight as possible by making sure that it is robust and of good quality. There is no benefit and greatly enhanced risk in leaving things to chance.
Role reversal
It is worth understanding that the IPC sees the pre-application process as being driven by the applicant. It is the applicant's responsibility to comply with the requirements in the Planning Act and related guidance. Although the IPC will give advice on request, it is rarely definitive: the IPC believes that it is up to applicants to get things right.
Once an application is accepted by the IPC, the emphasis changes with the examination process being driven by the IPC. Compared to a traditional planning inquiry, the IPC adopts much more control than a planning inspector. For example, the written representation process is focussed around responding to the IPC's written questions. Similarly, the IPC will only hold hearings on areas where it considers that oral submissions will help it and even then it will identify the topics to be discussed. It will also decide when cross-examination would be helpful. Otherwise, it will rely on application documents and written representations.
This leads to a much more focussed examination process but also one that is, really, out of the applicants hands: the opportunity to influence and dominate the examination process through examination in chief and cross examination has largely gone. In a similar way, there is almost no scope to introduce new information, except where this is requested or can be done through the written representation process. As a result, much of the standard practice from traditional planning inquiries does not apply to IPC examinations.
In particular, the often sedate approach to preparing proofs of evidence and enjoying - or enduring - planning inquiries is a thing of the past when it comes to NSIPs. The standard examination period is 6 months. For promoters and their consultant teams this means pretty much six months of non-stop preparation of written representations (both answering written questions and responses to third parties) and a series of issue specific hearings. The need to commit resources and the time required should not be underestimated: it is a very intensive period.
Approached in the right way, there is much to commend the system for approving NSIPs. There are also a number of things not to take for granted. Doubtless over time a body of NSIP experience will develop among. Let's hope that Government lets this happen before changing it all again.
Howard Bassford is a partner and Benjamin Dove-Seymour is an associate in DLA Piper's national planning team (www.dlapiper.com). The team's recent projects include a resource recovery facility for Covanta Energy in Bedfordshire (the first NSIP to go through an examination under the PA 2008), the Mersey Gateway Project (a new tolled road bridge across the River Mersey), a major expansion of the Port of Felixstowe and a new post-panamax container terminal at Bathside Bay, Harwich for Hutchison Ports (UK) Limited. The team is also promoting further NSIPs, one in collaboration with Taylor Keogh.
