There is an interesting decision about this reported today. Samuel Smith Old Brewery challenged a decision of the Secretary of State for Energy to give consent for new power lines at Ferrybridge. The procedure for this was under the Electricity Act 1989. If the Secretary of State gives permission for lines under that Act , he can also direct that permission is deemed to be granted under the normal planning regime, but without an application for planning permission. The main question in the case was whether the determination had to be in accordance with the development plan (unless material considerations indicated otherwise). That is s.38(6) of the Planning and Compulsory Purchase Act 2004 which applies to determinations under the planning Acts (as defined).
The Court held that the determination was not under the planning Acts – not really a surprising conclusion – and so the presumption in favour of the plan in s.38(6) did not apply.
Nowadays, the Infrastructure Planning Commission takes decisions on lines above 132 kV, under the Planning Act 2008, which is not, despite its name, a planning Act. It has to decide in accordance with the relevant national policy statement, unless adverse impact outweighs the benefits. So the presumption doesn’t apply there either. Or does it? The IPC must have regard to other matters which it considers are “both important and relevant”. Isn’t the plan and the presumption which would apply if the application were a planning application important and relevant? I dare say the argument will rage. And things will also change when the IPC is abolished in April, with decisions then reverting to the Secretary of State.
Finally, where the line is 20kV or above but below 132 kV the old Electricity Act procedure applies so the Samuel Smith decision will be relevant there.
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