Policy and planning processes for delivering the Commission's

recommendations:Scene-setting & process

Robbie Owen

Head of Infrastructure Planning and Government Affairs

Pinsent Masons LLP

Introduction

• What is the recommended wider package – “key supporting policies”?

• What needs to be done to deliver it?• For the development consenting aspects, the part to be

played by:– a Hybrid Bill; or– a Development Consent Order

• Key differences between those two consenting routes

• Deciding factors?

Recommended wider package (1)

Congestion or

access charge?

Tie-in to progress on EU air

quality targets

UK aviation

‘noise levy’

Independent aviation noise

authority

Ban on night flights

Legal commitment - No 4th Runway

Legally binding ‘noise

envelope’

Recommended wider package (2)

Wider community package

Joint Oversight

Board

Dedicated delivery

body

Surface access

improvements

Airspace change

Community Engagement

Board

Public service obligations on an airport-to-airport basis

Delivering a wider package…..

• HMG and HAL discussions and negotiations• Role of other bodies (local authorities, GLA, TfL, CAA, airlines, Highways

England, Network Rail, environmental regulators)• Initial House of Commons vote/motion?• Green, White and Command Papers• DfT consultation before any decision?• Paving Bill?• Civil Aviation Bill (‘Programme Bill’)?• Non-hybrid (i.e. public) aspects in a Hybrid Bill?

Two consenting options (1)

Development Consent Order (DCO) Hybrid Bill

Order made under Planning Act 2008 Primary legislation

Most major infrastructure projects, e.g. TTT, Hinkley Point C, Swansea Tidal Lagoon

Used less often: HS2, Crossrail 1, HS1 – suited to big projects

Promoter in control Government in control

PINS examines; Secretary of State decides

Select Committees review; Parliament decides but capacity issues?

Heavily proscribed and very onerous statutory process (e.g. consultation and examination)

More flexible and less onerous; more of a one stop shop

Definitive, shorter timeline No programme certainty

Easier for public to engage? Easier for public to obtain changes?

Less politicised Immunity from legal challenge

Two consenting options (2)

Both options need the Government to take action:

• DCO ideally supported by an Airports National Policy Statement (NPS) - to be prepared, consulted on and ‘designated’

• A Hybrid Bill needs:– to be promoted by the

Government– Parliamentary time and support

Consenting for major infrastructure identified

in Planning Act 2008 (including airports)

Consent is a statutory instrument called an

‘Order’

Can authorise more than one piece of major

infrastructure in a single DCO

Streamlined consenting process (planning, land

acquisition, licences, permits in one place)

Guaranteed timelines after submission =

Decision by SoS 16-18 months from submission

of application

Promoter prepares application Detailed

public review by Planning Inspectorate

(PINS)

DCO

DCO process

Pre-submission

c.9 months – 3 years

Post-Submission: -acceptance -initial assessmentc. 4-5 months

Examination

6 months

PINS ReportingandSoS Decision

6 months

Prelim

inary

Meetin

g

• Front loaded• Extensive consultation & notice requirements• Examination:

– Extremely intensive 6 months! – Written process, supplemented by hearings

• Decision-making period is 3 months + 3 months max

Rookery SouthIpswich Rail Chord

North Doncaster Rail ChordKentish Flats Extension

Brechfa Forest West Wind FarmHeysham to M6 Link Road

Hinkley Point C New Nuclear Power StationPreesall Saltfield (Underground Gas Storage)

Galloper Offshore Wind FarmTriton Knoll Offshore Wind Farm

East Northants Resource Management FacilityPort Blyth New Biomass Plant

M1 J10a Grade Separation - LutonRedditch Branch Enhancement Scheme

Able Marine Energy ParkKings Lynn

StaffordNorth London

East AngliaDIRFT

Rampion Offshore Wind FarmKnutsford to Bowdon Roads Improvement

North Killingholme New Power StationThames Tunnel

Clocaenog Wind FarmBurbo Bank Wind Farm Extension

Woodside Connection (Road)South Hook Combined Heat & Power Station

Walney Extension Offshore Wind FarmHornsea Offshore (Round 3 Zone 4)

Willington Gas PipelineMorpeth

A160 ImminghamA30 Cornwall

Dogger Bank (Creyke Back)Knottingley Power Station

WhitemossNorwich Northern Distributor Road

Tidal Lagoon Swansea Bay

-1000 -500 0 500 1000 1500

-105-398-391-394

-561-270

-557-486

-578-649

-149-693

-338-442

-361-823-783

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-991-942

-1094-861

-1041-1071-1030

-316-420

-1062-1091-1191

-418-1255

-239-1221-1255

-455-327

-690

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528

Days Taken Per Stage (Decided Projects)

Pre-App (COSMO) Acceptance Pre-Exam Examination Recommendation

Decision SPP JR Re-determination

Source: Planning Inspectorate, July 2015

DCO timelines

Possible R3 DCO timeline

Source: Heathrow Airport Limited, July 2015

DCOs – key considerations

• Promoter leads –in control but can be ‘lonely’• Less political – PINS are independent body, focussed

on planning merits (but NPS still cornerstone)• Extensive consultation and pre-application steps are

statutory obligations• Process has limited flexibility:

– after application made; and– once consent has been given.

• Certainty of delivery timelines the key advantage

Mix of ‘Public’ and ‘Private’ Bill characteristics and

process

Details reviewed by Select Committee

Those specially and directly affected can ‘petition’ against

and be heard

Promoted by Government Department

Principle debated and then approved

Flexible process (changes via Additional Provisions) and flexible

consent

No minimum or maximum timelines

Output = Primary legislation cannot be challenged (except on

EU grounds)

Contains everything needed to deliver project (and more?

e.g. regeneration power in HS2 Bill)

Hybrid Bills

Hybrid Bill process

1. Bill deposit (Bill, Plans & Sections, Environmental Statement, etc.)

2. 1st reading (i.e. publication) in the House of Commons

3. Public consultation on environmental impact assessment

4. 2nd reading (i.e. debate on general principle)

5. “Petitioning” period between 2nd Reading and Select Committee

6. Petitions heard by Select Committee

7. Public Bill Committee (line by line review)

8. Report stage (i.e. report of Committee stage to whole House)

9. 3rd Reading (i.e. final debate on final version of Bill)

10. House of Lords – petitioning and Select Committee

11. Any further amendments approved by the Commons

12. Royal Assent

Example Timeline – HS2 Bill so farConsultation on ES

29 November 2013

Independent Assessor’s Report

9 April 2014

Second Reading

28 & 29 April 2014

Petitioning Deadline

23 May 2015

Committee sat first 6 May 2014

Interim Report

26 March 2015

Hybrid Bills – current and recent statistics

Crossrail Act 2008 HS2 Bill (to 23 June 2015)

10 MPs on Select Committee

5 MPs (previously 6)

457 petitions deposited in Commons

1,918 petitions deposited

84 public sessions 80 public sessions

205 petitioners heard in Commons

More than 400 petitioners heard

7 site visits from Commons Committee

9 site visits from Commons Committee

4 series of amendments to the Bill were recommended and accepted

2 APs so far – more to come

40 months in total 19 months and counting…Anticipated Royal Assent Q1 2017

Hybrid Bills – key considerations

• Political support – need Government backing and wider parliamentary support

• Different policy basis – no NPS required• Flexibility – in process and final consent, more suited to an

outline or hybrid design• Limited scope for legal challenge – as Act is primary

legislation • Ability to incorporate supporting & wide ranging

measures• Timelines are uncertain – Crossrail took 40 months, HS2 is

19 months and counting…• Parliamentary capacity

Political Support

Risk of legal

challenge

Consultation

Obligations

Flexibility of

Consent

Certainty &

Speed

Promoter Control

vs. Governm

ent SupportTransparency

& Public Engagement

Multi-Agency Coordin

ationCost

Deciding factors?

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