Major infrastructure projects planning process to be further streamlined

The UK government confirmed the step on Wednesday and on Thursday tabled resulting amendments to its Planning and Infrastructure Bill.

The government introduced the Bill into the UK parliament in March. The Bill has since had its second reading in the House of Commons and is due to move on to the Committee stage of the legislative process on Thursday when the amendments are expected to be debated. The Committee stage is due to run until 22 May.

In a written statement to parliament, housing and planning minister Matthew Pennycook said that there is “considerable evidence” that statutory consultation requirements currently in law and relevant to NSIPs “are driving perverse outcomes”. To address this, he said the government will remove the statutory requirement to consult as part of the pre-application stage for NSIP applications.

“Rather than providing a means by which engagement drives better outcomes, statutory pre-application procedures have become a tick-box exercise that encourages risk aversion and gold-plating,” Pennycook said. “The result is consultation fatigue and confusion for communities; longer, more technical and less accessible documentation; and an arrangement that actively disincentivises improvements to applications – even if these are in a local communities’ interest – because applicants worry this will require a further repeat consultation.”

“The government has concluded that these statutory requirements, absent from other planning regimes, including those used to determine applications for new housing, now serve to slow down projects and deter improvements to them – wholly contrary to their nominal purpose of producing better outcomes,” he said.

As part of the change, developers will not be required to prepare and consult on preliminary environmental information, Pennycook confirmed, adding that the pre-application stage could be shortened by up to a year in many cases, once the reforms are implemented, and make it easier – and cheaper – for developers to deliver major economic infrastructure in the UK. He cited electricity networks and clean energy sources, roads, public transport links and water supplies, as examples.

Pennycook confirmed that affected local communities and local authorities will retain scope to object to applications, submit supporting evidence to their case, and have their say once NSIP applications have been lodged. He further said that pre-application consultation will continue to be encouraged – because fresh statutory guidance, to be consulted on this summer, will emphasise that applications are unlikely to progress to be examined if there has been inadequate consultation at the pre-application stage.

Pennycook said: “The government is clear that removing these statutory requirements does not signify that pre-submission consultation and high-quality engagement is no longer important – such engagement and consultation will remain vital to delivering successful major infrastructure projects. However, the current system is not working for communities or developers.”

“We still want the NSIP regime to function on the basis of a front-loaded approach in which development proposals are thoroughly scoped and refined prior to being submitted to the Planning Inspectorate. And we still expect high-quality early, meaningful and constructive engagement and consultation to take place with those affected as part of that process, thereby enabling positive changes to be made to proposals without causing undue delays,” he said.

“The Planning Inspectorate, on behalf of the Secretary of State, will continue to assess whether applications are suitable to proceed to examination,” Pennycook added. “We expect guidance to emphasise that without adequate engagement and consultation, applications are unlikely to be able to proceed to examination. Both guidance and advice from the Planning Inspectorate will be aimed at helping applications demonstrate that they are of a satisfactory standard.”

Commenting on the proposals, infrastructure planning and development consent orders (DCOs) expert Robbie Owen of Pinsent Masons, said the amendments could significantly reduce the time it takes developers currently to bring forward NSIP applications.

“Removing the statutory obligations to consult and the related architecture such as preliminary environmental information reports will really help to simplify and shorten the pre-application process and reduce its cost, and is also likely to make it easier to bring forward minor changes to an application once it has been accepted for examination,” Owen said.

“It is very encouraging to see government responding to some of the feedback on the bill and the views of many that it needed to go further and be more ambitious, including by reducing the processes and complexity of the DCO pre-application phase. This change could well make more effective and reduce the length of the pre-application phase by anything from six to 18 months, depending on the nature of the project – that is clearly very significant and complements the provisions already in the bill to focus and speed up the entire DCO process,” he said.

Owen said genuine and proportionate consultation and meaningful engagement will remain a very important part of preparing a DCO application, however, but he urged the government to take care when preparing the new statutory guidance it has promised, to avoid mirroring the current problems in the new regime.

“Whilst removing the statutory requirements to consult will help reduce the current ‘gold-plating’ of the overall consultation process through multiple rounds, where applicants fear legal challenge, and give confidence that a focussed and simplified process will be acceptable, the danger in the statutory guidance government will now be issuing to replace the provisions to be repealed is that, in trying to be helpful, it actually sets up expectations and standards that will have much the same effect as the current statutory provisions, and that The Planning Inspectorate will over police and expect literal compliance with the guidance when it comes to decisions on the acceptance of DCO applications for examination,” Owen said. “This will be quite a tightrope to tread as, with the statutory provisions gone, the attention of those who do not want projects to succeed will doubtless turn to whether applicants have instead complied with the ‘Gunning’ principles and other public law obligations relating to consultation.”

“Applicants will also need the new guidance to lay down very clear expectations as to the performance of local authorities, environmental and other statutory bodies in terms of how they both proactively facilitate and respond to consultation and engagement, for which applicants will be paying those bodies considerable sums under recent cost-recovery measures. So, it will be critical for the new guidance to strike the right balance and provide clarity,” he added.

On Thursday, the government also tabled other amendments to the Planning and Infrastructure Bill relating to existing powers to enter and survey land, and to improve the process for changing DCOs which had been proposed in the government’s planning working paper published in January but which was not ultimately included on the face of the Bill.

However, according to Owen, ministers should bring forward further amendments.

He said: "More still is needed to embolden the Bill. Changes are needed to: provide greater certainty around national policy statements, by narrowing the scope for legal challenges; ensure that government has the ability on a case-by-case basis to vary the standard DCO process both before the application and afterwards, for example by putting a binding timetable in place to ensure timely engagement by all parties; provide for parliament to be able to confirm an approved DCO for a ‘critical national priority project’ through an abridged process, resulting in an act of parliament rendering the DCO immune from judicial review; and ensure that DCOs are actually the one stop shop for all the consents required for a project that they were originally envisaged to be – the DCO should contain as many consents as possible and the recent review by Dan Corry does not provide a full answer to this.”