Planning and Infrastructure Bill introduced to support UK growth agenda

The Planning and Infrastructure Bill was introduced into the UK parliament on Tuesday and has been heralded by the government as providing for “transformative reforms to get Britain building, tackle blockers and unleash billions in economic growth”.

The Bill is wide-ranging. Most of the provisions apply in England and Wales only, though some would have effect in Scotland.

Planning and infrastructure expert Robbie Owen of Pinsent Masons said: “This is a big 97 clause bill and ministers and officials have moved at real pace since the election to get it ready for introduction into parliament today. They will be planning for it to pass by the summer recess but, in the meantime, there are expected to be consultations on the regulations and guidance needed to implement the measures.”

Some of the measures are focused on supporting projects that constitute ‘nationally significant infrastructure projects’ (NSIPs) – projects that meet certain thresholds defined in the Planning Act 2008. Different thresholds apply to different types of infrastructure, such as large wind or solar farms, major water, road or rail projects, or significant commercial projects like gigafactories, data centres and laboratories.

Developers behind NSIPs require a development consent order (DCO) to proceed with their projects. The DCO process is separate to other consenting regimes where decision-making powers rest with local planning authorities – DCOs are made by government ministers, but applications are subject to strict procedural requirements before decisions are taken, including in relation to consultation with statutorily-designated agencies and stakeholders, as well as evaluation by one or more planning inspectors.

Further to a working paper published in January, among the proposed measures in the Bill relevant to NSIPs are proposals to streamline the consenting regime and ensure the documents that govern how applications for development consent for NSIPs are assessed – national policy statements (NPSs) – are updated more regularly; at least every five years, rather than the current longer periods. Further measures aim to reduce the opportunity for judicial review challenges to be raised against NPSs and NSIP decisions.

Owen said: “The reforms to the NSIP system are most welcome and many of them, such as regular updating of NPSs, have been long requested but none are a silver bullet. There seems little doubt that ministers will need to go much further if they are to deliver on their infrastructure commitments, particularly making 150 decisions on NSIPs in this parliament, both in relation to measures trailed in the working paper but where policy is still under development and new measures.”

“Crucially, these changes to the NSIP system and to judicial review procedures are unlikely to materially cut the amount of time taken to obtain consent for infrastructure projects. This is largely because the pre-application process will not be significantly simplified, despite changes to consultation and engagement requirements, and there are no proposals to stop judicial review cases that are arguable from delaying projects, often by between one or two years if not longer. Even if the Bill does succeed in cutting the determination period for NSIP applications to two years, as ministers have said, this will still be about six months longer than was being consistently achieved in the 2010s when the system first started operating,” he said.

A broader suite of planning reforms is also provided for under the Bill. Measures include the introduction of a new strategic planning system, to ensure there is a joined-up approach to meeting infrastructure needs across local planning authority areas, and changes to the current system of environmental impact assessment. Changes to planning decision-making processes are also planned, with a triage system for referring applications to planning officers on the one hand and planning committees on the other, envisaged.

Further reforms are proposed to the compulsory purchase regime to enable housebuilding, while the role of development corporations in enabling new homes and infrastructure delivery is to be strengthened. A new nature recovery fund is also to be established to help developers meet their environmental obligations.

“There are some really significant changes to the planning system here, not least the significant move towards strategic planning across the whole of England and further progress on replacing environment statements with environmental outcome reports for environmental impact assessments,” Owen said. “The new nature restoration levy, environmental delivery plans and related measures for a strategic approach to development and nature recovery is a very important development that those behind projects will need to understand and embrace.”

“The architecture for new towns and urban extensions is further improved by the additional powers for locally-led development corporations, not least in respect of infrastructure and transport planning, but we still await details as to the delivery powers for these projects – whether special development orders, local development orders, or development consent orders that can authorise significant housing,” he added.

Much of the Bill’s detail was trailed through earlier publications. For example, the government published proposals for reform in a series of working papers, including one on streamlining infrastructure planning, and confirmed its intention to reform judicial review procedures in relation to NSIPs in its response to the Banner review it had earlier commissioned.

The Bill is a central pillar of the Labour government’s legislative agenda and is aligned with its stated missions, which include to kickstart economic growth and make Britain a clean energy superpower, as well as its broader commitments, such as to reform the planning regime to support development – including the delivery of 1.5 million new homes over the course of the current parliament.

In respect of the planning regime in England, the Bill also builds on changes the government has already applied to the National Planning Policy Framework (NPPF).

The updated NPPF encourages a ‘brownfield first’ approach to development, but also recognises that some development will need to happen on other land too if government objectives on housing delivery and addressing other infrastructure needs are to be met. The NPPF requires local planning authorities to undertake a review of green belt land in their area and release what it has described as “lower quality ‘grey belt’ land” for development to meet local needs. Development on this ‘grey belt’ is to be prioritised ahead of development on the remaining green belt. The government recently published new NPPF ‘grey belt’ planning guidance to support developers.

In relation to development in Scotland, the Bill provides for reform of planning rules for electricity infrastructure, aimed at cutting the time it takes developers to obtain consent for installing pylons and other on-shore electricity infrastructure and, for certain measures, offshore electricity infrastructure – it can currently take up to four years for major projects to clear the consenting regime. The new provisions were published alongside the government’s response to an earlier consultation it held on potential reform.

“Determination timescales are highly variable and stubbornly long in Scotland, so it is good to see the government pressing forward quickly with a package of well-intentioned measures that seek to address this,” said planning law expert Gary McGovern of Pinsent Masons. “Some of the reforms will help speed up the process and it is welcome that some of the most concerning elements of the original reform package have been removed or modified in response to feedback.”

“The removal of the automatic trigger for public inquiry where a local planning authority objects, will undoubtedly speed up some cases, but the lack of any overarching determination timescales remains a major gap. It is also unclear what, if anything, is to be done to address chronic consultee resourcing issues, especially with local planning authorities. The main cause of delay for onshore projects is local planning authorities taking between six and 12-plus months to provide consultation responses,” he said.

“Developers will be pleased that the sweeping proposed power to revoke or suspend consents has been dropped, and that the power to unilaterally vary existing consents will be limited to correcting obvious errors. Stakeholders will also welcome the sensible decision to seek to align new pre-application consultation requirements with those already applicable to planning applications in Scotland, rather than reinvent the wheel or import pre-application processes from the DCO regime used in England,” McGovern said.

Gordon McCreath of Pinsent Masons, who specialises in consenting for major projects, added: “While there are some welcome streamlining measures, as Gary points out the consultation response shies away from imposing the binding statutory timescales that apply to DCOs in England and that are required to see projects consented in a timely manner. The UK government does, however, intend to give the Scottish government the power to set deadlines in future, so the issue is still ‘live’. It needs to remain so, not added to the list of statutory powers that have never been exercised.”

"By contrast, the consultation response states that the two-stage challenge process currently applying to offshore electricity consenting decisions will be expanded to apply onshore too. This is a significant reform. Compare that to the arguably unexciting refinements proposed to the judicial review process in England and Wales, which only remove one stage from the permission process, and one can’t help but wonder why the best bits of the systems north and south of the border can’t be combined into a single consistent process, with binding statutory timescales for decision and a challenge process which allows for one appeal," he said.

McGovern said: “It is important that government continues to engage with and be responsive to feedback from stakeholders, particularly around transitional arrangements to ensure the prospect of impending changes later this year does not cause delays to in-flight applications meantime,” he added.