Turbocharging Infrastructure Planning: The Planning and Infrastructure Bill Latest Proposals

The Planning and Infrastructure Bill (PIB) is currently being debated by the Committee of the House of Lords, so hopefully royal assent is in sight for this transformational legislation to streamline infrastructure planning. We previously outlined the key reforms back in April - Energising Infrastructure: Key Infrastructure Reforms in the Latest Planning & Infrastructure Bill.

More details are now available on the emerging changes to requirements for the consenting of Nationally Significant Infrastructure Projects (NSIPs). See Consultation on streamlining infrastructure planning - GOV.UK published on 1 September which is open for general consultation until 27 October (Consultation Paper).

Mainly concerned with updating pre application consultation and engagement requirements, the Consultation Paper provides a range of options for improvement of the current NSIP procedures.

Pre Application Consultation and Engagement

Top of list is the prescriptiveness of pre application guidance. Gone are the specific statutory consultation requirements (most of sections 42 to 49 of the Planning Act 2008) to be replaced by guidance which will aim to

• focus on the outcome of a more meaningful approach to engagement, rather than focusing on the operation of statutory processes and requirements
• increase flexibility to enable engagement on an application to be based on the individual nature of the project, as opposed to a one-size-fits-all approach.

The PIB removes the requirement for a preliminary environmental information report (PEIR) but the government recognises that a balance is to be struck between engaging early enough to inform the proposed development as it is refined, and providing sufficient information for stakeholders to understand potential impacts. The provision of adequate details on impacts of a proposed development was the purpose of PEIRs but they have become ever more extensive, and it is thought that applicants should have more flexibility to determine whether there  is sufficient information on which to consult.

The Consultation Paper sets out the benefits of early engagement with statutory bodies, local authorities and landowners. For persons affected by the scheme but no interests are to be acquired, so called the Category 3 persons, the PIB removes the need for pre application consultation. The PIB also removes the requirement for a Statement of Community Consultation and to consult local authorities on these, but guidance will encourage applicants to consider whether local authorities should assist in identifying whom to consult and engage, and how best to do so. The Consultation Paper stresses the importance and benefits of engagement with the local community.

Acceptance and Examination Changes

In the absence of statutory pre application consultation, the Consultation Paper lists those documents required to be submitted with the application including a Potential Main Issues for Examination, Statements of Common Ground or Principal Areas of Disagreement Summary Statements, an Issues and Engagement log and a Land and Rights Negotiation Tracker. Guidance may also require the submission of evidence plans to support the development of Environmental Impact Assessments (EIAs). Evidence plans are produced in collaboration with relevant environmental bodies to agree upfront the scope and content of environmental evidence for the examination.

The PIB also alters the acceptance test. Currently, the acceptance test requires an application to be ‘of a satisfactory standard’ and with no flexibility on the Planning Inspectorate (PINS) to seek to improve an application. The proposal test is whether an application is ‘suitable to proceed to examination’. Guidance will explain that whether and how consultation and engagement has been undertaken would not be a matter tested at acceptance, but high quality applications are still required. The PIB allows PINS to request changes to application documents during the acceptance period where doing so is necessary for those applications to be accepted. A strict 28 period will be given to make those changes. PINS is also able to take into account the extent to which the applicant has had regard to any advice given under section 51 in connection with the application.

Focused Examination

The Consultation Paper provides for three areas of reform to improve the efficiency of examinations:

• Using Initial Assessments of Principal Issues (IAPI) to focus examinations. The PIB will introduce new requirements for the Examining Authority (ExA) to make procedural decisions ‘in light of’ its IAPI. Moreover, through potential rule changes, IAPIs are to be more succinct and focused for examinations, with the potential to require IAPIs to be submitted to the Secretary of State (SoS) once prepared. Rules may also require that  the ExA recommendation is explicitly linked to the IAPA by showing how the key issues identified were considered during the examination process.
• Revised guidance (much of it based on existing guidance) will be directed at statutory bodies and their role in examinations.  Through changes in the PIB, public authorities will be required to have regard to any guidance issued by the SoS on making representations for the purposes of the examination of an application. For local authorities, relevant representations and Local Impact Reports (LIRs) form an effective part of the NSIP process and should provide an objective assessment of how the project is likely to impact the local community, environment, and economy. A LIR is not intended to identify the local authority’s broader views about the proposal. For other public bodies, guidance will encourage early involvement and the submission of relevant representations.  Public bodies should take note of the contents of the Rule 6 letter setting out the key examination deadlines and be properly resourced to participate in the examination.
• Introducing greater proportionality in the examination of proposals to compulsorily acquire land as part of a DCO where a change to a development is promoted during examination. Currently there is a duplication of procedures in the compulsory acquisition and the NSIP legislation. The Government is considering changes to the compulsory acquisition legislation to merge with existing examination procedures, with government guidance setting out where additional processes would be deployed by the ExA, under their own discretion, based on the level of scrutiny a change must be given. 

The Consultation Paper provides for several other changes including reforming the (only just reformed) PINS pre application process, changes to public body charging scope and coverage, suggested reforms to the as yet unused Fast Track process as well as notification procedures.

There is much to commend in this wide ranging 73 page Consultation Paper and NSIP developers will be keen to see the finalised guidance as it emerges with the progression of the PIB to royal assent. One area to watch out for is the transitional arrangements. NSIPs have a long gestation period and determining when the new guidance applies will need to be made very clear and unambiguous to prevent further delays in the system.