The Planning & Infrastructure Bill: An Overview

It is finally here. The Labour Government's flagship planning bill has arrived in parliament.  The PIB has taken flight, and I have already run out of puns*…. 

This post provides a high-level overview of the content of the Planning & Infrastructure Bill. More detailed coverage on specific provisions will follow when we have all had a chance to properly digest the draft legislation. 

The post also, briefly, covers yesterday's written ministerial statement on statutory consultees. Both because it is important and because I ran out of time to cover it earlier in the week. 

The Planning & Infrastructure Bill 

Let's start with the big news of the day. The long-awaited Planning & Infrastructure Bill has finally arrived in parliament. The press release accompanying the bill can be found here. 

The bill itself can be found here.** Its second reading has been set for tomorrow - so the government clearly does not intend to let the grass grown under its feet on this one!

It is a fairly chunky piece of legislation, so there is a lot to unpack here. Please bear with me. It might take a while… 

Fair warning: This post follows the structure of the bill, because it is easier to write it that way. You may need to scroll a bit to find the sections that interest you. 

Also, I am taking a very England-centric approach to this summary. Not all of the provisions apply in Scotland and Wales:

Part 1: Infrastructure: NSIPS, Electricity and Transport

The opening section of the bill is heavily focused on infrastructure provision.  In particular: transport infrastructure (chapter 3), projects related to the grid (chapter 2) and improvements to the Nationally Significant Infrastructure Projects Regime (chapter 1). 

Key provisions in chapter 1 include:

• Amendments to the Planning Act 2008 to require National Planning Policy Statements to be fully reviewed and updated every five years (clause 1)
• Streamlining the procedure for making specific amendments to National Policy Statements (NPS) identified during the review process namely changes required to reflect a) changes to government policy published in the intervening period, b) changes that had been made to legislation referred to in the NPS, c) court decisions that impact the NPS or similar intervening events (clause 2)
• Giving the Secretary of State the power to direct that specific projects are not considered under the DCO regime, but are instead consented under another route (clause 3)
• Making a number of changes to the consultation requirements for DCOs (see clauses 4 and 5), including the form and content of consultation reports and the parties that need to be consulted as part of the pre-application process. 
• Strengthening the requirements of the acceptance gateway for DCO applications (see clause 6) and expressly allowing examining authorities to make costs awards at any stage of the DCO process (clause 7). 

Significantly, clause 8 of the Bill changes the judicial review process for NPS and DCO consents - enacting what many have come to call “the Banner reforms”. 

Under the revised procedure:

• All JRs relating to a DCO or an NPS will proceed straight to an oral permission hearing; and 
• those claims which are both refused permission and deemed “totally without merit”, will lose the ability to appeal to the Court of Appeal.

Chapters 2 and 3 can be dealt with more briefly. Key provisions in these sections include:

• a wide range of provisions granting the relevant Secretary of State and the Gas and Electricity Markets Authority (GEMA) the power to amend or modify electricity licenses and connection agreements, as well as setting out how, when and why those amendments can be made;
• a provision (clause 13) that imposes an express duty on the grid and electricity distributors to “have regard to the designated strategic plans” these being strategic plans that the secretary of state can designate through secondary legislation.
• a variety of provisions relating to electricity production in Scotland that I am omitting as this blog is going to be quite long enough as it is; and
• provisions to allow renewable energy schemes on forestry land and to give financial incentives to the both the development of long-term energy storage schemes, and separately, to local communities to accept the development of pylons or other “energy transmission infrastructure” in their area.
• Provisions allowing local authorities and public bodies to charge fees for providing services connected to highways schemes
• Standardising the period for objections to highways schemes in England at 30 days - more or less across the board
• Allowing highways CPOS to authorise the taking of land temporarily for construction purposes etc; and 
• a wide variety of amendments to the process for highways schemes brought forward under the Transport and Works Act 1992

This part of the bill also contains provisions:

• changing the basis on fees are charged for applications for Harbour Orders.
• simplifying the process for installing electric vehicle charge points on the public highway (by removing the need for both a s.50 street works licence AND a street works permit)

Part 2: Planning

Now, onto the bits you have all been waiting for… Part 2 of the bill relates to Planning. 

Planning Fees - clause 44

The bill contains provisions that will allow local planning authorities to set their own planning fees provided that the fees are capped at a cost-recovery level. 

Now, this is dependent on the Secretary of State first making the relevant secondary legislation, but there is some very exciting stuff in here.

Firstly, we appear to have ring-fencing in the legislation. The new clauses 8C and 8D in the TCPA 1990 would read as follows:

Note the word “must” in the new paragraph 8C. 

For those who don't fancy cross-referencing legislative provisions, the list in clause 8D broadly relates to development management, enforcement (specifically certificates of lawfulness) and tree protection work, as well as listed building applications, some other bits and pieces, and anything else the Secretary of State may choose to specify in secondary legislation.

MHCLG is also retaining the right to direct councils to change fees that they deem “inappropriate”. As such, there will be national supervision to avoid fees being set too high (or arguably too low). 

Planning Committee Training and National Scheme of Delegation - clauses 45 and 46

Clause 45 of the bill empowers the Secretary of State to make regulations setting mandatory, standardised, training for planning committee members.

The detail of the training is reserved for secondary legislation, but the overall shape of the new system appears to run along the following lines:

• training will be required across a number of planning topics or functions. 
• once the committee member has completed the training, they will be issued with a “completion certificate” which will be valid for a specified period of time. 
• Crucially, this training requirement has teeth. As the completion certificate is a mandatory pre-requisite for members to exercise any planning functions. to quote the bill for a second:

Clause 46 of the bill empowers the Secretary of State to set a national scheme of delegation for local planning authorities in England. Crucially, however, it does not say what that scheme of delegation should be. That question, which is a particularly tricky one, has been left for secondary legislation. 

The clause also contains provisions allowing the Secretary of State to make regulations setting out the size and composition of planning committees. Again, however, the details of what precisely is envisaged has been left for another day.  Interestingly, the explanatory notes for this clause states:

There is a duty on the Secretary of State to consult on these regulations before laying them before parliament. 

Strategic Planning - Chapter 2

Chapter 2 of Part 2 of the bill officially brings strategic planning back into the English planning system after a prolonged (and some might say painful) absence. 

Now, I have largely borrowed what follows from a LinkedIn post by Catriona Riddell, as she has been heavily involved in designing the new system and frankly can summarise it better than most people I know. 

But, to paraphrase Catriona:

• The bill places a duty on Strategic Planning Authorities (SPA) to prepare a Spatial Development Strategy (SDS)
• The SPAs will be combined authorities, combined county authorities and outside of these, county and unitary councils. Where there is more than one CC/UA with the responsibility for a strategic planning area (to be identified by the SoS), a Strategic Planning Board will be established.
• SDS will have to specify the amount and distribution of housing (and affordable housing) across its area; embed climate change policies, address health issues, and take into account Local Nature Recovery Strategies and identify strategic infrastructure requirements. They will not allocate sites or repeat NDMPs.
• The SPA will have to prepare a timetable for preparation of the SDS and agree this with the Secretary of State who can ask for it to be amended or for the SPA to prepare a new timetable. 
• There will be one formal period for public consultation but no right to be heard at the examination. The examiner will be appointed by the Secretary of State.
• The SDS (which will set long term spatial frameworks) should be reviewed 'from time to time' although the Secretary of State can direct a review. SPA can prepare an alteration to the SDS (e.g. to update a specific policy) or replace the whole SDS where it is considered out of date. 
• There will be significant range of Secretary of State intervention powers mainly to ensure that SDS reflect national policies and priorities and to ensure that they are not unreasonably withdrawn (e.g. where there is a change in leadership/ SPA or where the SPA decides not to submit a final draft for examination). Ther SoS can take over responsibility for preparing an SDS and can have costs recovered for this from the SPA. 

Nature Restoration - Part 3 

Part 3 of the bill contains perhaps the most complicated provisions in the entire draft legislation - the ones that relate to Labour's solution to Nitrate and Water Neutrality. 

I am certain that we will have more to say on this part of the bill in due course, so what follows is only a very high-level summary of what is being proposed. 

The general idea is that Natural England will be required to prepare a new type of plan, called an “Environmental Delivery Plan” (EDP), which would set out conservation measures to be carried out at a strategic level within an area. These measures would then be funded by a “Nature Restoration Levy” that is paid by developers.

The bill lays the legislative framework for both EDPs and the new Nature Restoration Levy.

The idea is that an EDP would, once made by the Secretary of State:

• Relate to a specific area or areas of England (as identified by a map)
• apply to specific types or forms of development within that area
• specify the environmental features (such as protected habitats etc) that are likely to be negatively affected by the relevant type or development
• and set out:
  • the conservation measures that are to be taken by or on behalf of Natural England in order to protect those environmental features. 
  • the amount of the nature restoration levy payable by developers to Natural England to cover the cost of those conservation measures; and
  • the environmental obligations in relation to development that are discharged, disapplied or otherwise modified if a developer pays the nature restoration levy in relation to the development

Once an EDP is in place, a developer bringing forward a scheme in the affected area would, in most circumstances, have a choice. They could either:

• commit to pay the Nature Restoration Levy for the development, in which case the relevant restrictions on developments posed by the habitat regulations or the wildlife and countryside act would be disregarded; or
• continue under the current system, under which they would need to provide site specific mitigation for their development proposals.

The bill does allow an EDP to make payment of the new levy mandatory for specific environmental effects and required mitigation, but Natural England would have to justify why it was doing so, and the Secretary of State would have to approve it when making the EDP.

The provisions governing the setting up, monitoring, reporting and governance of both the levy and the EDP are extensive and worthy of a post all of their own. So, I won't spend much more time on them here. 

The Nature Restoration Levy provisions look somewhat familiar*!, but it is however good to see that viability of development is a specific consideration as part of the rate setting process when it comes to the Levy.

It is also interesting to see that the bill proposes giving Natural England compulsory purchase powers in connection with the conservation measures set out in EDPs - which may be somewhat concerning for landowners in affected areas.

Needless to say, I suspect this may end up being one of the most controversial aspects of the bill, when it works its way through parliament. Not least because of the way that it proposes to amend the habitat regulations…. 

Development Corporations 

Part 4 of the bill relates to development corporations and includes a wide range of measures largely designed to standardise and consolidate the powers available between the various different types of development corporation that can exist. 

For example, the bill includes provisions to:

• clarify the types of development that different development corporations can carry out (i.e. new towns and urban extensions on both brownfield and greenfield sites)
• require all types of development corporations to have regard to the desirability of sustainable development, good design, and adapting to climate change.
• give all development corporations the same powers when it comes to infrastructure delivery; and 
• require local transport authorities to co-operate with development corporations when drawing up or delivering the plans of that development corporation.

Compulsory Purchase Amendments 

And finally, Part 5 of the bill makes a number of amendments to our CPO regime. 

The changes include:

• enabling the electronic service of notices (clause 83) and standardising the content of newspaper adverts (clause 84); 
• allowing an acquiring authority to confirm its own compulsory purchase order with modifications providing they do not affect a person’s interest in land (or with the relevant person's consent) (clause 85); and 
• spending up the general vesting procedure in specific circumstances (clauses 86 and 87) 
• changing the rules around compensation for owners and occupiers' loss payments, and home loss payments; and 
• amending the rules around article 14A directions - which remove hope value from certain developments by:
  • allowing authorities to approve their own CPOS, containing article 14A directions, in certain circumstances.
  • allowing them to be made in relation to CPOs bought on behalf of town or parish councils; and 
  • ensuring that the direction removing hope value applies to the calculation of compensatory payments for the loss of land, as well as to the calculation of market value.

In short, the bill is a big and fairly complicated piece of legislation. Whilst the government is showing all the signs of wanting to push it through quickly, there will be a lot for MPs and members of the House of Lords to get their teeth into when it gets into the committee stages, 

The Written Ministerial Statement on Statutory Consultees 

Yesterday, also saw the publication of a Written Ministerial Statement on Statutory consultees - which can be read in full here.

Whilst much of the statement refers to actions that MHCLG intend to take “in the spring”, as a WMS, it became a material consideration for local planning authorities from the moment it is published.

As this post is already pretty long, below are a few bullet points headlines to be aware of:

• MHCLG wants statutory consultees to support economic growth. to quote the WMS: “In seeking advice and providing it, the goal should be to ensure that wherever possible good quality development can progress, drawing on the right expert input where necessary.”
• There will be a consultation “this Spring” on reducing the number of statutory consultees - initially they are considering removing Sport England, the Theatres Trust and the Gardens Trust. It will also consider whether some types of planning application should be removed from scope - i.e. not require statutory consultation. Secondary legislation should follow later in the year. 
• The WMS sets the following expectations for Local Planning Authorities:
  • local planning authorities should limit consultation of statutory consultees to only those instances where it is necessary to do so.
  • routine referrals to statutory consultees outside the statutory requirements should not take place. 
  • where a statutory consultee has not provided advice within the agreed period, the decision maker should consider whether they can make a decision without it.
  • Decisions should not be delayed in order to secure advice from a statutory consultee beyond the 21 (or 18) day statutory deadlines unless there is insufficient information to make the decision, or more detailed advice may enable an approval rather than refusal.
• It also sets the following expectations for statutory consultations:
  • responses to planning applications “should be provided in the form of advice to the decision-maker and should not be framed as an objection to the development”.
  • MHCLG will create a new performance framework for statutory consultees, which will be overseen by both MHCLG and the Treasury
• Finally, MHCLG promises to tackle the funding of statutory consultees - promising to “develop a model to support this sustainable funding, while ensuring we are incentivising efficient and constructive engagement in applications, and in the planning system more generally”.

Crucially, the expectations set for local planning authorities in the written ministerial statement are now part of national policy - so these should be taken into account from now on. 

Right. That was a lot of information for one post. I don't know about you, but I need chocolate…. 

*don't worry - I am actively looking for more

** explanatory notes are here

*! they appear to share a draftsman with the enabling legislation for both CIL and IL