Heathrow north-west runway Planning Act explanatory briefing
Published 21 June 2018
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The value of using The Planning Act
The Planning Act was passed by Parliament in 2008 to speed up the process of approving major new infrastructure. The Planning Act process is designed to allow staged decision-making, as well as providing for the enforcement of the binding commitments made through this process.
National Policy Statement stage
The first step is for government to designate a National Policy Statement (NPS).
The purpose of an NPS is to test and demonstrate that there is a need for new infrastructure, to test that the development is sustainable and to set the broad parameters on what constitutes acceptable development. This is a national-level policy decision involving Parliament. No consent is given to any development at this stage, only approval to the framework by which future decisions will be taken.
An NPS is optional. Nationally significant infrastructure projects can be proposed and agreed without an NPS in place. An NPS is desirable as preparing proposals for major infrastructure projects takes a long time and costs many millions. For example the volume of paperwork to support the Thames Tideway Tunnel development consent application was so significant it had to be transported by truck and stored on a reinforced concrete floor. Testing and agreeing the need and the acceptable parameters at a national level based on strategic-level assessment is a helpful first stage. This gives confidence to potential developers and investors that drawing up a scheme proposal is worthwhile as the overall need for the scheme will not be re-evaluated when development consent is sought.
Development consent stage
The second step is for developers to bring forward detailed proposals for development consent.
It is at this stage, and not before, that a development may be given the green light.
To inform a decision on consent, the proposals are scrutinised in public by an independent examining authority with input from interested parties. Proposals are tested against all relevant legislation and planning documents, including a relevant NPS, if there is one. This is a transparent process set out in legislation. Further information on this process is available on the Planning Inspectorate website.
Legislation has a number of safeguards for affected communities and potential developers, including requirements for public consultation and statutory periods for judicial review. Assessments of environmental impact, health impact and equalities impact must be produced in detail and form a key part of the examination and decision-making on any development consent application. Any NPS, such as the proposed Airports NPS, may specify further work to be done to prepare the development consent proposals.
Enforcement
The Planning Act provides additional powers for enforcement of commitments made during the planning process that are not available through the standard Town and Country Planning Act process.
If development consent is given, the mitigations and support packages set out in the application (as modified during the examination process) will become planning requirements or planning obligations. Planning requirements set in a development consent order (DCO) are legally enforceable. This means that breaking them without reasonable excuse is a criminal offence and can lead to potentially unlimited fines. Persistent breaches can be tackled through court injunctions and can lead to restrictions on operations.
The challenge of a scheme-specific NPS
The proposed Airports NPS is unique in setting a single preferred scheme. The key reasons for this approach are:
- the Airports Commission concluded that there was a need for one new runway to be in operations in the south-east of England by 2030
- with the need for only one runway being endorsed now, we need to ensure that this isn’t a race between airports to get an application in, and that we support the scheme that delivers the biggest benefit to the UK whilst managing impacts to communities
- we have to consider the scale of the impacts on communities and the environment, as well as the benefits, to develop a preference. This means considering the scheme and not just the airport
With a scheme-specific NPS the optimum solutions for community compensation, surface access, environmental protection, scheme costs, etc. are naturally a focus. But it is fundamentally too early to try to answer these questions in detail. The scheme promoter needs to undertake further detailed work, in consultation with local communities and local authorities. The work for the NPS needs to be sufficient to be confident that the scheme is the best solution from the options available, and sufficient to set a framework for future development consent applications.