Growth and Infrastructure Act commencement news

The Growth and Infrastructure Act 2013 gained royal assent on 25 April 2013 and contains a pot pourri of planning and other changes intended to boost growth, including some changes to the Planning Act 2008.

The Act declares how things will be brought into force in three ways: immediately (i.e. on 25 April), after two months (i.e. on 25 June) and by 'commencement order', a type of statutory instrument that specifically brings primary legislation into force. The first such commencement order was made last week and deals with the infrastructure provisions in the Act plus two other provisions.

This blog entry lists the provisions that came into force on 25 April and that the Act brings into force on 25 June. The new commencement order can be found here but here is a summary of what it does.

The first non-infrastructure provision is that the government can now bring in regulations dealing with local authorities in 'special measures', i.e. where certain major planning applications are made directly to the government. Thus the government can create the machinery of special measures, but cannot yet actually apply it to any local authorities.

The second non-infrastructure provision is that the government can make orders dispensing with the need for local authorities to sell land for the most money they can reasonably get in certain circumstances, which will come into force on 25 June.

Infrastructure commencement

There are six sections of the Act that amend the Planning Act regime. The section that brings 'business and commercial' projects optionally within the regime has already come into force, although it has no effect yet because the types of project covered by the section have not yet been specified. The commencement order brings the other five sections into force on that same date of 25 June, but the 'transitional provisions' about which applications they apply to and how are complicated.

The section clarifying the ability to include tolling in a Planning Act application will only apply to applications made on or after 25 June.

The section allowing changes to consents obtained before the Planning Act came into force to use the previous regime rather than the Planning Act regime comes into force on that date. It is not relevant to live applications so doesn't need to refer to them.

The section dropping the need for certificates to be obtained in various circumstances only applies to applications made on or after 25 June.

The application of the section reducing the triggers for special parliamentary procedure (SPP) to live applications is the most complicated. The changes only apply to applications made after 19 October 2012 that had not completed their examinations by 25 June. For applications made between 19 October and 25 June, the process is tweaked so that instead of the development consent order recording the dispensing of SPP, the government must certify this.

Finally, the section reducing the scope of SPP once triggered only applies to applications made on or after 19 October 2012.

Analysis

If you are about to make an application that is likely to be caught by SPP under the old rules, then you should probably wait until 25 June before making it. Six weeks or less at this end will be worth a year or more at the other end. If you are a local authority or a statutory undertaker, or are not acquiring any local authority or statutory undertaker's land compulsorily, then carry on.

Just one application made before 19 October 2012 is likely to trigger SPP under the old rules, if it gets a positive decision. A waste of time undergoing a 'zombie' process in my opinion, but I may be a bit biased.

The business about applications made between 19 October 2012 and 25 June 2013 currently applies to ten applications, plus any more that are made between now and 25 June. Why they have bothered with references to examinations being completed before 25 June is beyond me because no application is in that category - only one application made after 19 October, or possibly two, will have started its examination by 25 June, never mind finishing it.

All of those ten applications will avoid the old SPP triggers, as long as they follow the process for certification set out in the commencement order. The effects of this commencement order could thus live on until late next year. Any new applications made on or after 25 June, however, can assume that the Growth and Infrastructure Act changes have been fully implemented.