Streamlining Infrastructure Planning
In early 2023, the former government published an action plan setting out its ambitions to reform and improve the planning process for nationally significant infrastructure projects (NSIPs) (read more here). Building on those plans to achieve a better, faster, greener, fairer and more resilient system, the current Labour government has published a working paper seeking views on what further planning reform (primarily legislative changes to the Planning Act 2008 through the Planning & Infrastructure Bill) could be made to further streamline the development of critical infrastructure (and in particular, NSIPs). We consider the key proposals below.
National Policy Statement (NPS) review
Five-yearly updates to NPSs together with a more streamlined process for changing NPSs are proposed to ensure that these reflect the latest needs case, and government policy and guidance to support applicants and decision makers. Regular reviews will ensure that NPSs reflect wider government strategies such as the 10-year Infrastructure Strategy and the (forthcoming) Strategic Spatial Energy Plan. The Planning Act 2008 requires the Secretary of State to decide an NSIP application in accordance with any relevant NPS, where one is in effect. Accordingly, ensuring there are up to date NPSs that reflect current government targets and ambitions is essential for consistent decision-making across infrastructure sectors.
Where we are dealing with an ever-evolving sector, such as energy, where different technologies are being developed and existing technologies are being scaled up rapidly, the process to update any NPS needs to be agile to keep up with the rate of change on the ground. Accordingly, proposals to simplify the process for changing an NPS are critical and welcome.
The working paper also suggests a separate procedure, to support more regular updates of NPSs, for “reflective amendments” (which may be material) and are required to respond to legislative changes coming in, changes to published government policy, and relevant court decisions all made after the last amendment to the NPS. In this case, such changes would still be subject to the consultation and publicity requirements as the current material amendment procedure, but the parliamentary scrutiny requirements are proposed to be disapplied on the basis that exercise would have already been undertaken and to avoid duplication.
Taken holistically, the proposed amendments establish NPSs as living documents, rather than a snapshot in time, reflecting the infrastructure priorities of the government of the day and providing greater certainty for applicants and decision makers.
Consultation
The working paper identifies three issues with the current consultation arrangements under the Planning Act 2008 at present. Firstly, a level of uncertainty as to the exact pre-application consultation requirements coupled with applicants’ fear of applications not being accepted for examination has led to “gold plated” pre-application consultation (including, sometimes re-consultation) which in turn enlarges the pre-application periods, and results in unwieldy consultation documentation. Secondly, there is no incentive for statutory consultees, other stakeholders, and applicants to resolve issues early. Those unresolved issues often persist well into the examination stage. Thirdly, current statutory requirements for consultation with “Category 3” persons (i.e. someone who might be entitled to make a relevant claim for compensation if consent is granted and the development implemented) prior to an application being submitted generates substantial additional work that may not be necessary as the proposals and the understanding of their impacts evolve through the pre-application period.
The working paper therefore proposes to clarify the acceptance requirements in a way that supports “outcomes-based judgements”, rather than a box checking exercise for acceptance. It will be acceptable for consultation to be undertaken in a proportionate way but still meet the compliance threshold for acceptance. In that vein, the working paper suggests revising the consultation report requirements themselves to reduce the sheer volume of these documents; the focus should be on ensuring there has been meaningful consultation, accurately captured in the reports.
The working paper also suggests introducing a new duty on all parties to identify and narrow down any areas of disagreement during the pre-application stage, which has received a mixed response from industry. While the objective to seek to minimise areas of disagreement as quickly as possibly is an important one, the imposition of a statutory duty could have unintended consequences resulting in further avenues for challenge if such statutory duty is breached; how any duty is framed will be critical. The issue of engagement with statutory consultees is in any event largely an issue of resourcing and the fact that there are a significant number of projects (NSIPs and other planning applications proceeding under the Town and Country Planning Act 1990) that they are required to comment on at any given time. Consideration as to how to address resource as a key contributor to delay in the consultation period, would also be welcome.
The working paper proposes removing the requirement to consult ‘Category 3’ persons during the pre-application stage (such persons will still be identified ahead of submission of the application) – this is a sensible approach as it avoids confusing third parties whose land may ultimately not be affected by the proposals. It is also worth noting here, that a failure to identify a Category 3 person does not remove that person’s ability to seek compensation later – it is simply a consultation point for the applicant who is required to ensure that any person likely to be affected by the proposals is made aware.
Post-consent delivery
The key feature of the NSIP regime when it was introduced was that it was a “one-stop shop” for applicants to secure all the permissions needed to undertake construction. To that end, section 150 provides for the disapplication of requirements for further prescribed consents or authorisations, subject to the consent of the relevant body that would otherwise grant that consent or authorisation. However, this is only ever used infrequently and instead, in practice, consenting processes are occurring in parallel. The working paper trails possibly expanding the use of deemed licences (as is done with marine licences for offshore wind projects, for example) to other permitting regimes; the extent of any expansion will of course depend on the appetite of the relevant regulator.
Another significant hurdle to the speedy delivery of infrastructure is the fairly onerous process for amending a DCO once it has been granted. It is not uncommon for amendments to be required; however, the current process inevitably results in significant delay where applicants get caught up determining whether a change is “material” or “non material” (in the absence of clear guidance setting this out) before the change application is even made. The working paper therefore proposes removing the “material” / “non-material” distinction and instead a single process shall apply across the board.
Alternative consenting routes
The working paper touches on those projects comprising a number of elements, not all of which fall within the NSIP criteria to proceed under the Planning Act 2008. While an applicant can seek a section 35 direction from the Secretary of State that the application be treated as an NSIP, the working paper suggests a further power be conferred on the Secretary of State enabling them to direct a project out of the NSIP regime where a more appropriate consenting route exists. Such an amendment does provide greater flexibility for applicants to ensure that the ultimate consenting route chosen is the most appropriate for their development, however, such an “opt out” would need to be granted early to ensure there is certainty for all parties and to avoid time and cost being expended unnecessarily considering a DCO application which is not going to be pursued ultimately.
Additionally, the government considers there is some merit in varying the standard process under the Planning Act 2008 for specified development including (a) solar projects, where planning, land and environmental issues are more limited; (b) clusters of NSIPs in one region; and (c) complex and lengthy linear projects, including some grid and transport schemes. This is perhaps too simplistic an approach – any ability to vary a standard process must be done on a case by case basis to avoid unintended consequences.
Comment
The working paper sets out clear proposals which the industry appears broadly supportive of and would certainly go some way to resolving some of the critical issues with the NSIP consenting regime. As ever, the devil is in the detail: it will be interesting to see the responses from industry to the working paper and we eagerly await the Planning & Infrastructure Bill to see which proposals (and in what form) survive. It is also worth emphasising that this working paper also focuses primarily on legislative changes; proposed updates or changes to secondary legislation and guidance are yet to be made public.
