Today's entry reports on the publication of the first replacement guidance for the Planning Act regime, for the pre-application process.
Background
There are currently seven guidance documents relating to the Planning Act regime, issued between September 2009 and March 2010, reported in blog entries here, here and here.The guidance is on the following subjects:
- Pre-application consultation
- The application form
- Associated development
- Examination
- Compulsory acquisition
- Fees
- Local authorities
That advice was getting rather out of date, since it pre-dates the coalition government, never mind the Localism Act. Back in April 2012, the government issued six draft replacement guidance documents for consultation (the local authorities one to be subsumed into the pre-application one) - the so-called 'light touch review'. The drafts were reported on here
It's taken a while, but yesterday the final version of the first of these was issued - for the pre-application process. The rest will follow over the coming weeks.
The new guidance can be found here.
What's changed
The new guidance has changed quite a lot from the old, and the wording has even changed quite a lot from the consultation draft, although there are no particularly substantive changes.
On behalf of the National Infrastructure Planning Association (NIPA), I gathered together the results of a session of interested NIPA members and submitted a response to the government, which can be found here. I'm glad to say that they have taken account of most of the comments that were made.
Perhaps the biggest change from the previous guidance, and changed a bit more since the draft, is the ability to include alternatives in an application, an issue prompted by National Grid. The guidance on this is now at paragraph 83 of the finalised document. What has changed since the draft (at the suggestion of NIPA) is that the inclusion of alternatives need not only be in 'exceptional' cases.
Thus if an applicant is neutral about two alternatives, but others are split, or an applicant prefers one alternative on economic or environmental grounds but consultees prefer another, the alternatives can be included in the application for the decision-maker to decide between. The criteria in para 83 must be met, however, particularly on environmental impact assessment having been carried out for all alternatives.
The guidance is fairly clear that re-consultation is only necessary if the project changes 'very substantially' (para 55), and that if it changes in a small area, the applicant only need 'inform' relevant consultees of the changes rather than re-consult (para 57). This should help end the paradox of infinite consultation.
At NIPA's request the guidance now says that PINS will inform local authorities of the making of an application so that they can make an 'adequacy of consultation' report. There is a hole in the legislation in that there is no statutory trigger for local authorities to be made aware of an application being made in time for such a report, so I'm glad to see the guidance fill the gap (para 66).
I counted four things that NIPA raised that haven't been incorporated (out of 15, so not bad):
- any mention of the model provisions - whether they still have any status and if departures from them should be highlighted (although this might go in the 'application form' guidance);
- mention of when consultees should be informed of the results of the consultation (i.e. before or after making the application, although it does imply after;
- mention that PINS likes two weeks' notice of the arrival of a screening or scoping opinion requuest; and
- that there be guidance on applications to 'upgrade' below-threshold projects into the regime (although this may appear somehwere else).
Finally, I'd just like to quote new text in paragraph 76: 'applicants should be satisfied that they have arrangements in place for appropriate specialist advice when drafting the [Development Consent] Order'. Suitable arrangements can be put in place by clicking here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
