National Infrastructure Planning Handbook

Preface
Contents
Contributors
Table of Cases
Table of Statutes
Table of Statutory Instruments
Part 1 The Examining Authority and the Secretary of State
	1 The Planning Inspectorate
	2 The Appointment and Composition of the Examining Authority
		Introduction
		Criteria for determining how an application should be handled
		Transfer of the application from a single appointed person to a Panel
		Appointment and replacement of Panels and single appointed persons
		The functions of the Examining Authority
		Appointment of assessors and advisors
	3 The Role of the Examining Authority
		Introduction
		Panel
		Single appointed person
		Examination of the application
	4 The Legal Status of the Secretary of State in Litigation
Part 2 National Policy Statements
	5 General Procedural Requirements for Designation of an NPS
		Introduction
		Publicity and consultation
		Parliamentary scrutiny
		Sustainability
		Designation as an NPS
		Review and amendment of an NPS
	6 NPSs and the Requirement for an Appraisal of Sustainability
		The nature and effect of NPSs
		The need for an assessment of sustainability
		What is required by way of sustainability appraisal?
		The need for Habitats Regulations Assessment (\'HRA\')
		Taking account of climate change
	7 NPS Consultation and Amendments
		Introduction
		Legal framework
		Changes to proposals as a result of consultation: when is a further round of consultation needed?
		What are the consultation and publicity requirements?
		General legal principles relevant to publicity and consultation
		Legal challenges arising from consultation
		Practical matters
	8 Context for the Identification of Need in NPSs
		Introduction
		The legislative framework relating to the identification of need
	9 The Identification of Need in the Energy NPSs
		Introduction
		EN-1: Overarching Energy
		EN-2 to EN-6: the technology-specific energy NPSs
		EN-3: Renewable Energy Infrastructure
		EN-4: Gas Supply Infrastructure and Gas and Oil Pipelines
		EN-5: Electricity Networks Infrastructure
		EN-6: Nuclear Power Generation
	10 The Identification of Need in the Non-energy NPSs
		Introduction
		Ports NPS
		Waste Water NPS
		Hazardous Waste NPS
		National Networks NPS
		Airports NPS
		Geological Disposal Infrastructure NPS
	11 The Status and Role of NPSs within the Planning Act 2008 Regime
		Introduction
		PA 2008, s 104: the primacy of the NPS
		PA 2008, s 106: restricted challenge to NPS policy
		Suspension
	12 Legal Challenges to NPSs
		Introduction
		When does PA 2008, s 13 apply?
		The effect of PA 2008, s 13
		Effect of a challenge
		Challenges to date
	13 Section 6 Reviews of NPSs
		Introduction
		Part 1: A closer look at section 6
		Part 2: Section 6 in context
		Part 3: Section 6 in the courts
Part 3 Nationally Signifi cant Infrastructure Projects
	14 General Characteristics of an NSIP
		Nature of development
		Scale of development
	15 Generating Stations
		Introduction
		The thresholds for a generating station to fall within the PA 2008
		Construction of a generating station
		Extension of a generating station
		Conclusions
	16 Offshore Generating Stations
		Introduction
		Statutory requirements for NSIP classification
		Marine licence
		Associated development
	17 Offshore Projects – Defining \'Offshore\'
		Introduction
		The definition of \'offshore\'
		Waters in or adjacent to England and Wales up to the seaward limits of the territorial sea
		Renewable Energy Zones
	18 Electric Lines
		Introduction
		Some issues
		Good practice
	19 Highways
		Introduction
		Construction, alteration and improvement of highways: definitions
		Relevant criteria for the construction, alteration or improvement of highways
		The location of the highway and the requirement for the Secretary of State to be the highway authority
		The application of size thresholds to development consisting of the construction and alteration of highways
		The need for significant environmental effects for development consisting of the improvement of a highway
		Alteration of a highway that is necessary as a result of development with planning permission
		Effect of requirement for development consent on certain statutory orders under the Highways Act 1980 and the New Roads and Street Works Act 1991
		Limited exemption from the requirement for development consent where certain statutory orders under the Highways Act 1980 or the New Roads and Street Works Act 1991 have already been made
		Associated development
		NPS for National Networks
	20 Harbour Facilities
		Introduction
		Harbour facilities
		Effect of the Wales Act 2017
		Harbour NSIPs
	21 Railways
		Introduction
		\'Construction\' versus \'alteration\'
		Statutory requirements for NSIP classification
		Development to be consented
		Policy
	22 Rail Freight Interchanges
		Introduction
		What is a rail freight interchange?
		Threshold requirements and other criteria
		Alterations to an RFI
		The inclusion of other uses within an RFI application
		DCOs granted for RFIs and alterations to RFIs
	23 Hazardous Waste Facilities
		Introduction
		Commencement
		Thresholds and geographical issues
		Definitions within PA 2008, s 30
		NPS for Hazardous Waste
		The King\'s Cliffe application
Part 4 Requirement for Development Consent
	24 When Development Consent is Required
		Introduction
		The requirement for development consent
	25 Secretary of State\'s Direction that a Project is of National Significance
		Introduction
		Section 35 directions
		Procedure
		Timetable for deciding a section 35 request
		The effect of a section 35 direction
		Examples of directions to date
	26 Business and Commercial Development
		Introduction
		The timetable for the amendments
		The new PA 2008, ss 35, 35ZA
		Geographical scope of the provisions
		Types of business and commercial development
		Establishing national significance
		Exclusions from the new provisions
		National Policy Statements
		Opting-in to the PA 2008 regime
		Making a \"qualifying request\" - procedure
		Preparing an application for development consent following a PA 2008, s 35 direction
		PA 2008, s 35 directions for business and commercial development
	27 Related Housing Development
		Introduction
		The law
		The DCLG Guidance on NSIPs and housing
		Comment
	28 Pre-application Project Development
		Introduction
		Part 1: The importance of pre-application project development under the PA 2008
		Part 2: Governing and documenting the process
		Part 3: Involving others in the process
Part 5 Pre-application Procedures
	29 Legal Requirements for the Statement of Community
		Introduction
		Preparing the SOCC
		Publicising the SOCC
		Consulting in accordance with the SOCC
		Revisions to the SOCC
	30 Section 42 Consultation
		Introduction
		Who must be consulted
		Timetable for consultation
		Duty to notify the Secretary of State
	31 General Principles relating to Consultation
		Introduction
		The duty to consult
		Fundamental rules of proper consultation
		Unlawful consultations
	32 Section 48 Publicity
		Publicity requirements
		Timing of pre-application publicity
		Feedback on PA 2008, s 48 publicity
	33 Taking Consultation into Account
		The requirements of PA 2008, s 49
		DCLG Guidance
		PINS Advice Note
		General case law on taking consultation into account
		Changing a proposed project in response to consultation
Part 6 Information and Surveys
	34 Obtaining Information about Interests in Land
		Introduction
		The purpose of PA 2008, s 52 and the time at which it may be used
		The requirement for the Secretary of State\'s consent
		PA 2008, s 52 as a \'last resort\'
		Consultation
		Types of PA 2008, s 52 notice
		The form of notice and period for response
		Failure to comply with a notice
		Other statutory powers for obtaining information about interests in land
	35 Rights of Entry
		Introduction
		The power
		The requirement for the Secretary of State\'s consent
		The exercise of a power of entry under PA 2008, s 53
		Compensation
		Crown land
		Other powers of entry for the carrying out of surveys etc
Part 7 Making an Application
	36 Application Documentation
		Introduction
		The consultation report
		Prescribed documents and information
		Order and format of application documents
		Assistance from the Planning Inspectorate
	37 Prescribed Matters for Certain Types of Project
		Technologies with additional prescribed matters
		Onshore generating stations
		Offshore generating stations
		Highway-related development or the construction or alteration of a railway
		Construction or alteration of harbour facilities
		Construction of a pipeline
		Construction of a hazardous waste facility
		Construction of a dam or reservoir
		Inclusion of the prescribed information within the application form
		National Policy Statements
Part 8 Contents of a Development Consent Order
	38 Defining the Nationally Significant Infrastructure Project
		Introduction
		Types of project
		Statutory power to include/exclude development
		Thresholds
		Extent of an NSIP
	39 Associated Development in England
		Introduction
		DCLG Guidance on associated development
		Some issues
		Examples of associated development
	40 Associated Development in Wales
		Introduction
		The limits on \'associated development\' in Wales
		DCLG Guidance on associated development
		Some examples
	41 Cable Ducts for Future Projects
		Introduction
		The legal issue
		Guidance
		The East Anglia One decision
		Conclusion
	42 DCO Model Provisions
		Introduction
		The status of model provisions
		The structure of the Model Provisions Order
		The predecessor regimes as a basis for precedent
		Drafting conventions for statutory instruments
		Conclusions
	43 Modern Drafting Conventions
		Introduction
		PINS Advice Note 15
		The SI Practice
		The SI Drafting Guidance
		Numbers and dates
		Headings
		Articles
		Punctuating lists
		Conjunctions between paragraphs
		Schedules
		Cross-references
		Definitions
		Bodies corporate
		Periods of time
		Words and phrases
		Conclusions
	44 Limits of Deviation
		Purpose of limits of deviation
		Horizontal and vertical limits of deviation
		Relevant statutory provisions
		Approach to drafting limits of deviation
		Variations in approach to drafting limits of deviation
		Wind farms
		Environmental impacts
		Justification for the limits of deviation
	45 Use of the Works
		The need for statutory authority
		Relevant provisions in the PA 2008
		Guidance on drafting DCOs
		Gas storage
		Rail freight interchange
		Harbour facilities
		Rail
		Highways
		Gas pipelines
		Power generation facilities
		Overhead lines
		Landfill
	46 Defence to Proceedings in Respect of Nuisance
		Introduction
		Statutory basis
		The scope of PA 2008, s 158
		Model provisions
		Guidance
		Compensation
	47 Streets
		Street works
		Stopping up and diversion of streets
		Tolls / road user charging
	48 Removal of other Consent Requirements
		Introduction
		PA 2008, s 150
		The \'relevant bodies\' under the Schedule
		Obtaining the consent of the relevant body
		Expanding and improving the \'one stop shop\' approach to consents
	49 The Discharge of DCO Requirements
		Introduction
		Drafting requirements to be discharged
		The appropriate discharge authority
		Appealing the discharging authority\'s decision
		Fees
	50 The Relationship between Development Consent and Marine Licensing
		Introduction
		Development within the UK marine licensing area
		A deemed marine licence
		The role of the MMO in relation to applications for development consent
		DCO \'requirements\' and deemed marine licence \'conditions\'
		Enforcement of \'conditions\' in a deemed marine licence
	51 Protective Provisions
		The nature of protective provisions
		The need for protective provisions
		Protective provisions at the pre-application stage
		Standard protective provisions
		Negotiating protective provisions post-examination
		Example protective provisions
	52 Ancillary Matters that may be Included in a DCO
		Introduction
		Express inclusions
		Relating or ancillary
		Necessary or expedient to give full effect to DCO
		Protective provisions
		Application, disapplication or modification of statutory provisions
		Byelaws and the creation of offences
	53 Matters that may not be Included in a DCO
		Introduction
		The effect of this provision
		Parallel applications
Part 9 Compulsory Purchase
	54 Compulsory Purchase Powers in a DCO
		Introduction
		Conditions for the exercise of compulsory purchase powers
		Justification for the exercise of compulsory purchase powers
		Types of land
		Notification requirements
		Procedural requirements
	55 Incorporation of the Compulsory Purchase Code
		Introduction
		Parts of the compulsory purchase code
		Ability to modify or exclude a \'compensation provision\'
		Compulsory purchase provisions in DCOs
	56 Extinguishment of Public Rights of Way
		Introduction
		General provision as to extinguishment
		The provision in practice
		Procedural requirements
	57 Temporary Possession
		Introduction
		Temporary use of land for carrying out the authorised project
		Temporary use of land for maintaining authorised project
		Neighbourhood Planning Act 2017
	58 Compulsory Purchase Compensation
		Introduction
		An overview of compulsory purchase compensation under the PA 2008
		Some additional points
	59 A Good Practice Guide to Land Referencing and Compulsory Acquisition
		Introduction
		Diligent inquiry: an introduction to land referencing techniques
		Data management and protection
		Completion of diligent inquiry
		Production of the land plans and identification of compulsory acquisition requirements
		The Book of Reference
		Best practice and lessons learnt
	60 Special Categories of Land
		Introduction
		Types of Special Category Land
		Crown land
		National Trust land
		Statutory undertaker land
		Common Land, Open Space, Fuel or Field Garden Allotments
	61 The Land and Assets of Statutory Undertakers
		Introduction
		Statutory provisions
		Protective provisions and agreements
Part 10Environmental Impact Assessment and Habitats Regulations Assessment
	62 The Status of European Union Law in the United Kingdom following its Withdrawal from the EU
		Introduction
		Part A – The Withdrawal Agreement
		Part B – The Trade and Cooperation Agreement
		Part C – \'EU retained law\'
		Conclusion
	63 EIA Screening
		Introduction
		The 2017 EIA Regulations
		The principle of EIA screening
		Screening pursuant to the 2017 EIA Regulations
		Obligations on the decision maker as regards the screening opinion
		Screening direction
	64 EIA Scoping
		Introduction
		Procedural steps
		Documents accompanying request
		Form of scoping opinion
		Secretary of State not precluded from asking for further information
		Guidance
	65 Preliminary Environmental Information
		Introduction
		Consulting on PEI
		What information must be included
	66 Preparation of an Environmental Statement
		Introduction
		Preparation of ES
	67 Environmental Impact Assessment: Transboundary Consultation
		Introduction
		The law
		Guidance
		Discussion
	68 Habitats Regulations Assessment
		Introduction
		The legislative framework
		The process of assessment under the 2017 Habitats Regulations
		Consideration by the Courts
	69 A Practical Approach to Compensatory Measures
		Introduction
		The location, nature and scope of compensatory measures
		Case study: Hornsea Project Three
Part 11 Other Application Documents
	70 Explanatory Memorandum
	71 Book of Reference
		Introduction
		Requirements
		Guidance
	72 Funding Statement
		The need for a funding statement
		The contents of a funding statement
		The purpose of a funding statement
		The funding statement in the examination process
		Practical issues and experience to date
	73 Statement of Reasons
	74 Statutory Nuisance Statements
		Introduction
		Context and importance
		Form and content of a statutory nuisance statement
	75 A Good Practice Guide to Planning Statements
		Introduction
		Guidance
		Research
		Role of the Planning Statement
		Content
		Relationship to other DCO documents
	76 Development Consent Obligations
		Introduction
		Incorporation of TCPA 1990, s 106 obligations within DCO regime
		Modification and discharge
		Law and guidance on the use of development consent obligations
		Enforcement of development consent obligations
Part 12 Pre-examination, Examination and Post-examination
	77 Timescales for Pre-examination, Examination and Post-examination Procedures
		Introduction
		Acceptance of an application
		Notification of acceptance
		Initial assessment and preliminary meeting
		Examination
		Decision
		Summary of experience
	78 Acceptance of an Application
		PA 2008, s 55 – decisions on whether to accept an application
		Notification of an accepted application
		Acceptance checklist
	79 Notifying Persons of Accepted Application and Relevant Representations
		Notifying persons of accepted application
		Deadline for receipt of relevant representations
		Infrastructure Planning (Examination Procedure) Rules 2010
		Time periods
	80 Interested Parties
		Introduction
		PA 2008, s 102
		PA 2008, ss 102A and 102B
		Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015
		Status of \'interested parties\' in the examination process
		Participation by those who are not interested parties
	81 Local Impact Reports
		PA 2008, s 60
		Procedural requirements and timescales
		Contents and style of an LIR
		Emerging good practice
	82 Initial Assessment of Issues
		Introduction
		Initial assessment of the principal issues
		Notification of the initial assessment
		Conclusion
		Examples of initial assessments
	83 Preliminary Meetings and Conduct of the Examination
		Introduction
		PA 2008
		Procedural rules
		DCLG/PINS Guidance
		Further practical points about preliminary meetings
	84 Statements of Common Ground
		Introduction
		The purpose of a statement of common ground
		The form and content of a statement of common ground
		The timing of a statement of common ground
		Preparing a statement of common ground
		The effect of a statement of common ground
	85 Issue Specific Hearings
		Introduction
		Requirements
		Good practice
	86 Compulsory Acquisition Hearings
		Introduction
		Requiring a compulsory acquisition hearing
		Arrangements for a compulsory acquisition hearing
		The conduct of a compulsory acquisition hearing
	87 Open Floor Hearings
		Introduction
		Procedural rules
		DCLG Guidance and PINS Advice
		Practice at OFHs
	88 Site Inspections
		Introduction
		Unaccompanied site inspections
		Accompanied site inspections
	89 Procedures following Completion of Examination
		Introduction
		Reporting to the Secretary of State
		Extending the deadline for the report
		The Secretary of State\"s decision
		Extending the deadline for the decision
		Experience so far
	90 Decision-making where an NPS \'has effect\'
		Introduction
		The structure of PA 2008, s 104
		Decisions where there is a section 35 direction
	91 Decision-making where there is no NPS
		Introduction
		The structure of PA 2008, s 105
		Decision making under s 105
		Decision making under both ss 104 and 105
		Some additional points
Part 13 Correction of Errors, Changesand Revocation
	92 Correction of Errors in Development Consent Decisions
		Introduction
		Conditions
		Correction notices
		Effect of a correction
		Examples of correction notices / orders
		Relationship with other provisions
		Conclusion
	93 Changes to, and Revocation of, Development Consent Orders
		Introduction
		Non-material changes to a DCO
		Material changes to, and revocation of, a DCO
		Compensation
Part 14 Legal Challenges
	94 Legal Challenge to Grant of Development Consent
		Introduction
		PA 2008, s 118(1)
		Procedural issues
		Permission to bring an application for judicial review
		Grounds for judicial review
		Other issues during conduct of proceedings
		Remedies
		Costs
	95 Legal Challenge to Refusal of Development Consent
		Introduction
		PA 2008, s 118(2)
		Procedural issues
		Grounds for judicial review
		Other issues during conduct of proceedings
		Remedy
		Costs
		Generally
	96 Legal Challenge to Decision not to Accept Application
		Introduction
		PA 2008, s 118(3)
		Procedural issues
		Grounds for judicial review
		Other issues during conduct of proceedings
		Generally
	97 Legal Challenge to Other Action of Secretary of State
		Introduction
		PA 2008, s 118(7)
		Within six weeks \'beginning with\' the \'relevant day\'
		Matters for challenge
Part 15 Enforcement
	98 Enforcement under the Planning Act 2008
		Introduction
		Offences
		Notices of unauthorised development
		Injunctions
Part 16 Miscellaneous Issues
	99 Amendments to a DCO Application
		Introduction
		PA 2008, s 114
		Examination Procedure Rules
		Guidance on making a change to a DCO application
	100 Costs in DCO Examinations
		Introduction
		The power to award costs
		Procedure for claiming costs
		Approach taken to applications for costs
Appendix Planning Act 2008
Index