An assessment of Whitehall’s latest attempt to reform planning law, which features a controversial ‘one-stop-shop’ consent regime

After several years wrestling with the question of developing a suitable regime to speed up the delivery of major infrastructure, the government has finally brought forward its proposals in the Planning Bill, which is currently before Parliament.

Ministers have expressed considerable frustration with the current regime, citing high-profile ‘failures’ such as the three-and-a-half years it took to turn down the proposed container port at Dibden Bay, and the five-year Heathrow Terminal 5 inquiry. Introducing the bill to the Commons on 10 December last year, communities and local government secretary Hazel Blears summed up the case for change: ‘Nationally significant infrastructure projects, such as transport links or renewable energy, that are vital to our competitiveness and our quality of life, face unacceptable delays... No one benefits from such delays: not business, local people, the economy or wider society.’

The bill’s main feature is the provision of a ‘one-stop-shop’ consent regime, enabling a developer to obtain authority to acquire land, obviating the need to apply for planning permission. Around 45 applications are expected each year.

While few promoters bearing the scars of lengthy inquiries are likely to mourn the passing of the old order, there are concerns that the proposed regime may sacrifice thoroughness for speed.

At the heart of the new regime stands an addition to the quangocracy: the Infrastructure Planning Commission (IPC). Its members will be responsible for determining applications for development consent in accordance with core principles set out in a suite of documents, which will match each of the categories listed in the bill as ‘nationally significant’. Thirteen categories are so designated. Unsurprisingly, given concerns about the security of energy supply, the list of categories is headed by generating stations. Other categories include highways, airports, harbours and railways. With the exception of railways, each of the categories is qualified by some criterion justifying its ‘nationally significant’ status. So, only highways which are motorways, trunk roads or roads requiring the preparation of an environmental statement will be subject to the new regime. Similarly, only onshore power stations with a capacity exceeding 50 megawatts and offshore power stations whose capacity exceeds 100 megawatts will qualify for consideration by the IPC.

As the more percipient members of Parliament realised during the bill’s committee stage, the IPC is arguably of less importance than the national policy statements for each of the ­sectors. The statements will set out criteria to be applied in deciding whether a location is suitable and may even identify potentially suitable sites. Extensive consultation on policy ­statements is expected, with Parliament taking a lead. As former planning minister David Curry pointed out to the public bill committee, the IPC’s main task will be ‘to organise… the mechanism of finalising a decision that has been foreshadowed in the national policy statement’. To put it in more legal language, the IPC must have regard to the relevant policy statement.

However, local government minister John Healey sought to emphasise the IPC’s discretion: ‘It is quite clear that the IPC is not there to rubber stamp any application that happens to be on a particular site… I fully expect the IPC not just to say "yes" to certain applications, but also rightly to say "no".’

The IPC’s discretion to reject an application is supported by its need to consider whether ‘the adverse impact of a proposed development outweighs its benefits’ – but this formulation is unspecific enough to ensure that the courts will doubtless be provided with a rich harvest of work in interpreting it.

Whatever discretion the IPC may have, we can expect the policy ­statement to provide a fairly rigid framework for decision making. Otherwise, the government’s ability to realise its ambition to establish new nuclear energy installations may be compromised.

Another element of the government’s vision for the planning system is its desire to capture an element of the gain bestowed by the grant of planning permission. The question to be asked is whether the latest attempt revealed in the Planning Bill, the Community Infrastructure Levy (CIL), will make the leap from dream to ­reality and be implemented by local planning authorities.

The lack of detail in the public domain in terms of what the CIL will actually cover and how it is to be calculated means that its impact remains uncertain. Draft regulations are to be published in the autumn and ministers’ current intention is for the levy to be introduced next year.

There are signs that the CIL will face less opposition from residential developers than the previous effort, the Planning Gain Supplement (PGS). A similarly based levy has already been used in relation to several successful large-scale residential developments and the CIL has been welcomed as one step removed from a PGS-style ‘land tax’ set at a national rate. Local planning authorities will be able to set their own tariffs and to take into account local conditions and problems encountered by developers bringing to market brownfield and other problem sites.

The government framework for the CIL suggests that the charging scheme is likely to be flexible, and could include supplementary charges, increased rates or reductions, depending on the circumstances. It is important for ­residential developers to be given ­adequate opportunity to engage in the local development framework process and to ensure that the levels of CIL are set at a transparent and reasonable rate.

The crucial question for the CIL will be its relationship with planning obligations. If there is a measure of overlap between the two charges, the developer will resent the ‘double whammy’. Planning obligations will remain necessary for non-financial, technical or operational matters and for site-specific impacts. The relationship between the two must be clearly addressed. Much of the delay associated with section 106 agreements stems from difficulties in reaching agreements in relation to affordable housing. Provision for affordable housing is ­currently outside the CIL and may mean that post-CIL section 106 agreements are no quicker to prepare.

Local planning authorities will not be required to introduce the levy. This leaves the door open to potential inconsistencies of approach between local planning authorities, which could lead to uncertainty and, ultimately, delays in delivering development. They may also be deterred by the government’s right of direction where there is a disagreement as to the way in which CIL revenue is spent. Although ministers have stressed that this would only be used in exceptional circumstances, they have yet to convince local ­planning authorities’ practitioners and developers that the CIL framework will result in a sufficiently fair and accountable system.

Examination of the new regime in Parliament stalled while ministers grappled with questions of detail which were overlooked in the rush to prepare a bill for early introduction last year. Labour backbenchers who flexed their muscles in an effort to preserve a greater degree of political accountability in the decision-making process in respect of major infrastructure projects secured a number of concessions. The most notable is a commitment from ministers to review the operation of the IPC two years after its establishment. The House of Lords – to which the bill has now passed – may prove more exacting in its demands. Legislating to speed up the planning system, despite an apparent political will, is no easy – or speedy – task.

Richard Bull is a senior solicitor in the ­parliamentary group and Nicola Raistrick is a partner in the planning and environmental group at Winckworth Sherwood