Update | Planning: government's growth agenda, village green threat, Habitats Directive

The government will publish regulations in October to extend the regime for Nationally Significant Infrastructure Projects (NSIP) under the Planning Act 2008 to a number of categories of business and commercial projects. The use of this regime will be optional for developers. It will apply to six categories of development: offices and R&D; manufacturing and processing; warehousing, storage and distribution; conference and exhibition centres; leisure, tourism, sports and recreation and aggregates and industrial minerals. It will not include coal, oil and gas or retail led projects, nor will it allow for the inclusion ?of housing.

This is a major endorsement of the Planning Act regime and follows on from a consultation which closed in early 2013. Interestingly, the government is not intending to set statutory thresholds, but will have a policy document including indicative thresholds. The government does not intend to prepare a National Policy Statement for these categories of development, despite that being the essence of the original regime.

It will be very interesting to see what level of interest there is in using the NSIP regime by these different sectors. The key advantages for developers are: a fixed 12-month timetable to decision once an application begins its examination; the ability to obtain multiple consents in one Development Consent Order and the ability to include compulsory purchase and highways powers.

The NSIP regime is still relatively new and has been used mostly by electricity schemes to date. The government has repeatedly refined the regime in the last two years to respond to feedback. It is carrying out a wide ranging review in early 2014, which is likely to lead to further refinements.

The use of the NSIP regime changes the role of planning authorities from decision makers to important consultees. This is likely to be a key factor in developers' deciding whether to use this regime. Many of these types of developments are successfully promoted in a collaborative way with local authorities and the NSIP option may be regarded as offering little. In other cases, it may be a very attractive option for developers, particularly by ?giving direct access to compulsory acquisition powers.

Village green threat ends?

An unintended loophole in the Commons Registration Act 1965 is being largely closed in England after causing over ten years of mayhem to the planning system. It was almost certainly never intended by parliament in 1965 to create the ability to register a new village green on the basis of 20 years new use, but the wording was open to that interpretation and it has been aggressively pursued by those opposed to development over the last 20 years, with some unthinking assistance by parliament in 2001 and 2006 and some surprising decisions by the courts. Those seeking to stop development overplayed their hand to the point where the integrity of the planning system was brought into question, and the fundamental injustice of land value being destroyed without compensation was plain to see.

The government finally acted through the Growth and Infrastructure Act 2013 with two key changes. The first change gives primacy to the planning system such that if a trigger event has taken place it is not possible to make a village green registration application unless a terminating event has taken place. Trigger events include an existing planning permission, a planning application and the allocation of a site in a draft or adopted Development Plan. There are some nuances to these trigger events, but the essential point is that a large percentage of sites which might otherwise have been at risk will be automatically protected as from 25 April 2013. Trigger events prior to that date are valid as well. Existing village green applications will still need to be determined and are not trumped by the new legislation even if a trigger event would have applied.

The second change introduces a system where a landowner can lodge a statement with the relevant registration authority which stops any further village green rights accruing. This has to be publicised by a site notice and on the authority's website. This statement "stops the clock" and starts the grace period during which a village green application can still be made. This grace period will be reduced from two years to one year as from 1 October 2013. This procedure will be the most straightforward way of lawfully stopping further village green rights from accruing. Great care will still, however, be needed for green field sites with no planning history.

There are still a large batch of current applications which will need to play out. However, the new Act marks a decisive shift towards the proper operation of the public interest. The village green threat, however, continues unabated in Wales where, despite some high profile village green cases, the Welsh government does not have any current intention to legislate.

Completely separate

The divergence of the planning system in Wales from that in England is gathering pace and practitioners need to keep an eye on the position as it evolves. While there will continue to be strong similarities with the English regime, it is clear that the Welsh government wants to bring about a situation where there is a completely separate body of planning legislation applicable to Wales, as is the case in Scotland. This journey began with the dramatic change to Welsh planning guidance under John Redwood in the mid-1990s, creating the overarching Planning Policy Wales, which in many ways is a precursor to the National Planning Policy Framework adopted in England 20 years later. There have been significant milestones in most new planning legislation since that time, most significantly the different Development Plan regime under the Planning and Compulsory Purchase Act 2004. This was initially seen as a shrewd move in avoiding the English revolution, but it has not proved as successful as was hoped. The 2004 Act also introduced the Wales Spatial Plan, as a new planning concept, ?but which has had relatively little impact on the ground.

The Welsh assembly now has full law making powers in its own right in the field of planning, and the Welsh government has been conducting a wide ranging review of all aspects the planning system in preparation for new legislation. The key legislation will be the Welsh Planning Reform Bill which is due to be published in draft in December, with a white paper consultation, with the resulting bill introduced to the assembly in Summer 2014. The bill will take its lead from the Independent Advisory Group's report on planning in Wales which was published in September 2012. This concluded that root and branch reform was not needed, and made 97 recommendations. The Welsh government has broadly endorsed the findings of the report and stated it will use the evidence base from it to develop the white paper and draft bill. Key themes of the bill are expected to include: the Welsh government taking over decisions on the ancillary development for NSIP developments in Wales; the preparation of a national framework within which local planning authorities deliver local development plans; the introduction of a statutory framework for regional planning and the establishment of a planning advisory and improvement body.

The bill is expected to be enacted in 2015, together with implementing regulations. In addition to the Planning Reform Bill, the Welsh government is bidding for the Law Commission to include a Planning Consolidation Bill in its next Work Programme, which could, if successful mean that completely separate Welsh planning legislation comes into being by 2016 or 2017.

It is clear that the appetite for the Welsh government to use primary law making powers after waiting for over 600 years is strong, with the white paper for an Environment Bill due in November 2013 and a Heritage Bill, which is the subject of a consultation running until October.

Uncertainty

The Habitats Directive continues to occupy the courts and is now providing almost as many legal challenges as EIA cases. In Feeney v Secretary of State [2013] EWHC 1238 (Admin) opposition was to the proposed improvements to the Chiltern Valley railway between Bicester and Oxford including the construction of new stations. The scheme was consented under a Transport and Works Act Order. The Waddenzee case (Case C-127-02 [2005] 2CMLR 31; CJEU) established that a precautionary approach should be adopted when considering the potential impacts of a project on European designated sites. Where, on the basis of objective information, significant impacts could not be excluded then it was necessary to undertake an appropriate assessment. This principle was accepted by both parties to this case.

The order included a condition requiring the undertaking of further air quality assessments. Only once these assessments had been satisfactorily completed could the railway and car park be brought into public use. The condition was imposed in recognition of the fact the potential impacts of the railway could only be fully ascertained once it was operational.

The claimant argued that this approach breached the precautionary principle and, following the approach set out in Waddenzee, the order should not have been issued until the necessary objective evidence had been obtained. Ouseley J in the High Court disagreed. He was satisfied that the "condition was to deal with the limited possible effect of the limited uncertainty" identified by Natural England, and was not therefore inconsistent with the habitats regime. Crucially, the judge was satisfied that the safeguards provided for by the condition meant potential effects on the ?SAC would be measured, mitigated against, and avoided.

As Ouseley J identified, the precautionary approach required by the Habitats Directive is a more stringent test than that which applies to environmental assessment, where decision makers retain a significant amount of discretion over how they deal with uncertainty in assessment. In this case, the relevant condition had only been imposed to satisfy the requirements of the Habitats Directive, and had not been considered necessary for EIA purposes.

Since the ECJ's ruling in the Waddenzee case the precautionary principle has been a key feature of the habitats regime, and one that presents significant challenges for developers, - especially those involved in relatively new areas such as offshore wind and marine renewables, where existing data is sometimes limited. Although this decision involved only limited uncertainty, it provides support for developers and planning authorities seeking to find a way through the habitats maze.

Julian Boswall is a ?partner and Cathryn Tracey is a solicitor at Burges Salmon