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Advice to GVA Grimley

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Enquiry

From
GVA Grimley
Date advice given
1 October 2010
Enquiry type
Email

What weight is to be given to National Policy Statements (NPSs) in in comparison to Planning Policy Statements (PPSs)/Planning Policy Guidance (PPG) and is a S.36 still applicable?

Advice given

When determining an application for development consent in relation to a Nationally Significant Infrastructure Project (NSIP), sections 104 and 105 of the Planning Act 2008 (the Act) set out the considerations which the relevant decision-maker must have regard to. If the relevant NPS has been designated and the decision-maker is therefore a Panel or Council (of the IPC), in accordance with section 104 of the Act, the Panel or Council must have regard to:

  • any relevant National Policy Statement (NPS),
  • any Local Impact Report (a written report which may be submitted to the IPC by a relevant local authority giving details of the likely impact of the proposed development on the authority's area),
  • any matters prescribed (Regulations and Rules made under the Act), and
  • any other matter which the Panel or Council thinks are both important and relevant to its decision (this may include any relevant PPSs/PPGs).

The Panel or Council must decide the application in accordance with any relevant NPS unless the Panel or Council consider that in doing so one or more of the following would apply:

  • the UK would be in breach of any of its international obligations - it would lead to the Panel or Council or the IPC being breach of any duty imposed on it by or under any enactment
  • it be would unlawful by virtue of any enactment
  • that the adverse impact of the proposed development would outweigh its benefits
  • that any condition prescribed for deciding an application otherwise than in accordance with a NPS is met.

However, if the relevant NPS has not been designated and the decision maker is therefore the relevant Secretary of State, in accordance with section 105 of the Act, the Secretary of State must have regard to:

  • any Local Impact Report,
  • any matters prescribed in relation to development of the description to which the application relates, and
  • any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision (this may include any relevant PPSs/PPGs, and any relevant draft NPS).

It is expected that the weight to be given to a draft NPS by the Secretary of State (and by the IPC in making its recommendation to him) will depend on considerations such as the stage reached by the proposed statement in its progress towards designation, the weight increasing the nearer it is to being designated, the extent to which it has been subject to public consultation and the level and substance of any representations made on it.

In general, draft statements that have only proceeded through the early stages of their journey to designation, or that have given rise to a significant degree of objection which remains unresolved, would be likely to command less weight. In either case, the weight to be given to any relevant PPSs/PPGs will be for the relevant decision-maker (Panel/Council or the Secretary of State) to judge. In preparing their Local Impact Report(s) relevant local authority(s) may also have regard to any relevant PPSs/PPGs. We also suggest that you look at the draft NPSs, as some do make reference to relevant PPSs/PPGs.

Please can you clarify your query related to section 36 consent. In the meantime, I can confirm that if a proposed generating station is considered to be a NSIP for which development consent is required, in accordance with sections 14, 15 and 31-33 of the Act, then the application should be made to the IPC under the Planning Act 2008, and not under section 36 of the Electricity Act 1989.