Written evidence submitted by the Infrastructure
Planning Commission
BACKGROUND
1. The IPC was established on the 1 October 2009,
under the Planning Act 2008, to examine applications for development
consent for Nationally Significant Infrastructure Projects (NSIPs),
including waste water infrastructure developments above the thresholds
specified in the Act. Once this National Policy Statements (NPS)
has been designated by the Secretary of State, the IPC will have
the power to decide such applications, and must do so in accordance
with the NPS.
2. The Coalition Government has reaffirmed the
importance of National Policy Statements in the infrastructure
planning regime. The IPC is to be abolished, subject to the will
of Parliament, from April 2012, although the expertise of the
organisation will be retained in a Major Infrastructure Planning
Unit as part of a reorganised Planning Inspectorate. NPSs will
continue to play a central role in examination of and decision-making
on major infrastructure projects.
3. The IPC has no remit to comment on policy
matters. Our comments in evidence to the Committee, and in response
to the Government's consultation, will therefore be restricted
to the clarity with which policy is set out in the NPS and other
aspects of its fitness for purpose.
SUMMARY
4. The IPC welcomes the publication of the
draft National Policy Statement on Waste Water. It is our view
that the draft would benefit from clarification and development
in some areas, as set out below.
ROLE OF
THE NPS
5. The purpose of a National Policy Statement
is to set out national policy in relation to a specified type
of development, and it is our observation that, with the exception
of the draft NPS on nuclear energy (EN-6) and this draft NPS,
they do so without making reference to specific locations for
particular proposed infrastructure. The clarity with which the
need for infrastructure in general is set out as a matter of policy
is fundamental to the utility of the NPS in the work of the examining
authority and the decision-maker. The NPS assists the Examining
Authority most where it is able to provide clear and unambiguous
policy guidance on the weight to be attached to evidence, including
impacts and mitigation measures both in general (section 6.3 on
odour is a good example) and in relation to particular proposals
where policy conclusions can be drawn from the Appraisal of Sustainability.
6. Conversely, an NPS risks straying from its
proper role if it attempts to reach conclusions on detailed planning
considerations relating to particular proposals. The locationally
specific sections of this NPS will need to be reviewed with particular
care to ensure that they provide a robust policy context without
infringing on areas which are properly the province of the applicant
or the IPC. For example, paragraph 3.1.3 does not in our view
constitute policy, and the conclusions drawn in paragraphs 3.1.5
and 3.1.8 are expressed in terms which could be considered to
fetter the proper exercise of judgment as to the principal issues.
7. It is important for the NPS to avoid using
language which risks creating tensions with statutory provisions.
At certain points in the text, for example, paragraph 5.1.1 (i)
and paragraphs 6.1.3-5, the draft runs the risk of appearing to
restate statutory provisions in different terms. This has no value
as the terms of the statute obviously take precedence. It would
be helpful if the draft was reviewed to avoid repeating or interpreting
aspects of the Planning Act 2008 and associated regulations.
ROLE OF
THE IPC
8. We welcome the emphasis at various points
in the draft NPS on effective engagement between applicants, regulatory
and permitting authorities such as the Environment Agency, the
Marine Management Organisation, and Natural England, and the IPC.
Applicants must work closely with these regulators at the pre-application
stage, and the regulators in turn must engage constructively and
in a timely manner sensitive to the strict timescales Parliament
has set for the IPC process. The IPC has a role in advising all
parties at the pre-application stage and will assist in this engagement
insofar as we can, but it is not the role of the IPC to mediate
disputes or become party to any agreements between applicants
and other statutory bodies. We would ask that paragraph 6.2.9
be amended accordingly.
9. The IPC's principal role is to act as Examining
Authority for major infrastructure applications, considering the
evidence put before the Commissioners and weighing all important
and relevant considerations in reaching a decision or recommendation.
This quasi-judicial role is the same whether or not the IPC is
itself the decision-maker, and will not change in this respect
as a result of the Localism Bill. Guidance given to the IPC in
the NPS needs to reflect accurately the nature of that role. For
example, it is not appropriate for policy to suggest that the
reasonableness or otherwise of the conduct of interested parties
would be relevant to the decision on the application itself; paragraph
6.2.10 should be either deleted or amended to remove reference
to the IPC's role in assessing behaviour that might lead to withdrawal
of an objection.
10. It is also important to distinguish clearly
and correctly between the role of the applicant and the role of
the IPC. For example:
(a) It is the applicant, not the IPC, who must
consult the Marine Management Organisation about potential impacts
on marine areas (paragraph 5.7.5).
(b) It is the applicant who must consult the
Health and Safety Executive and ensure that appropriate requirements
relating to mitigation or limitation of nuisance are included
in the draft development consent order (paragraph 5.11.2).
(c) It is not the role of the IPC to "encourage
the conservation of [ancient woodland]" (paragraph 6.5.13).
FURTHER ASSISTANCE
TO APPLICANTS
11. A key role of the NPS is to provide clarity
to applicants and others in relation to the appropriate approach
to seeking development consent for proposals which may fall within
the scope of the NPS. This may be of additional importance in
the future if provisions in the Localism Bill (clause 111) which
would extend the opportunities for proposed infrastructure projects
to be directed to the Major Infrastructure Planning Unit become
law. The need for clear policy and guidance may well reach beyond
the two proposals specifically identified in the NPS.
12. Particular areas where greater assistance
might be provided include:
(a) Hazardous substances. In Section 5.9.of the
draft, although the IPC will have power to direct that hazardous
substances consent is deemed, the IPC is wrongly identified as
the designated Hazardous Substances Authority, and applicants
could helpfully be directed to identify uses of land in the vicinity
which would assist the IPC in meeting statutory requirements for
decision making.
(b) Associated development. It would assist applicants
in particular if Government were able to offer guidance in this
NPS on the type of development which it would regard as associated
development to the NSIP which it is proposed to add to the waste
water field.
(c) Flexibility. An important concern being raised
with the IPC by a number of applicants is the extent to which
a development consent order may or may not offer a degree of flexibility
in the parameters of the authorised development. While this is
ultimately a matter for the courts to determine, policy guidance
from Government, such as that provided to offshore windfarm developers
in the Renewable Energy NPS EN-3, assists applicants, the IPC,
and other parties.
FURTHER INFORMATION
13. The Commission will be responding in similar
terms, and making further points of detail, to the Government's
consultation. We would be glad to assist the Committee with any
further information if requested to do so.
January 2011
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