Comment

Do the proposed changes to the consenting process for NSIPs go far enough?

The Government has published, for consultation, a working paper outlining proposals to reform the consenting process for Nationally Significant Infrastructure Projects (NSIPs). Director, Mark Worcester explains what has been proposed and why, although welcome, the changes aren’t big or bold enough.

The proposals are intended to deliver a faster, more certain and less costly regime for NSIPs recognizing that adding to and upgrading national infrastructure is critical to economic growth.

In 2021 the average decision time for an NSIP was 4.6 years compared to 2.1 years in 2012.

The proposed reforms comprise evolution not revolution and are based around the themes of: 

• Enabling more regular and faster updates to National Policy Statements.
• Making consultation less burdensome.
• Supporting the delivery of infrastructure post consent.
• Allowing appropriate flexibility in the process to support project delivery. 

National Policy Statements (NPS)

The Government proposes to introduce amendments to the Planning Act 2008 (PA2008) which will require that NPS documents are updated every five years (at least), many of which have not been updated since 2011.

Amended legislation will allow ‘reflective changes’ to ensure that NPS documents are aligned with legislation, policy and relevant case law. Lesser parliamentary scrutiny will, the Government intends, allow for updates to be achieved within a year.

Streamlining consultation requirements

The Government wishes to make the requirements relating to stakeholder consultation less burdensome on applicants whilst protecting the interests of third parties.

Presently, requirements for stakeholder consultation are seen as being overly complex with disproportionate levels of engagement being required; a situation compounded by some applicants ‘gold-plating’ their approach to de-risk the application acceptance stage as far as possible (see below).

The revised requirements would allow consultation reports to present thematic summaries of the feedback received and how the scheme has evolved. Presently, consultation reports provide an assessment of each individual consultation response and can extend to hundreds of pages as a result.

It is also proposed that the statutory requirement to consult with ‘Category 3’ parties at pre-application stage be removed although there will remain a requirement to notify such parties once an application has been submitted.

Other proposed changes relate to the requirements for application acceptance with a move towards outcome-based judgements. The extent to which consultation has been effective will be a key part of determining whether an application should be accepted for examination, although further clarification on this aspect will be required.

There will also be a renewed call to all parties for collaboration during the pre-application stage and to narrow down areas of disagreement prior to application submission.

Supporting delivery

To support the delivery of NSIPs the Government:

• intends to publish clearer guidance and encouragement relating to the use of Section 150 of PA2008 which enables applicants to secure all the consents and licenses necessary to construct an NSIP as part of the DCO. The consultation document indicates that these provisions are rarely utilised presently. The potential to grant deemed licenses where the specific conditions of legislation can be met will also be explored.
• will explore the potential for draft DCOs to be issued alongside the Secretary of State decision notice allowing a two-week window for corrections to be made (restricted to typographical errors and plan referencing) prior to finalization of the DCO. Presently the DCO and decision letter are issued together with any amendments required to follow a convoluted process.
• is considering removing the legislative distinction between ‘material’ and ‘non-material’ amendments post consent thereby eliminating the need for discussion as to the correct consenting route.

Alternative consenting regimes

The PA 2008 requires that certain categories of projects defined above thresholds must be consented by DCO. The Secretary of State may additionally direct that a project below the relevant threshold be designated as an NSIP (pursuant to Section 35) and many projects have proactively pursued this.

However, no provisions presently exist for a project which would be an NSIP (with reference to the PA2008) to be consented by an alternative consenting regime even when its impacts would be limited and uncontroversial. This anomaly has resulted in some projects (mainly solar) being deliberately undersized to avoid the additional cost and timescale burden of the DCO process.

The Government proposes to introduce new powers to allow the Secretary of State to determine if a project may be better suited to an alternative consenting regime. Applicants would be required to make a request demonstrating that defined criteria are met. The Town and Country Planning Act (planning permission) would be one such alternative.

Bigger and bolder reform is needed

The working-paper represents the latest expression of Government thinking on proposed reforms to the NSIP consenting regime and follows the introduction of the ‘fast-track’ process, fees for engagement with statutory consultees and the wider recommendations of the National Infrastructure Commission.

The proposed changes to lessen the burden around pre-application consultation, to make the acceptance process outcome based and the potential for some projects to be diverted to an alternative regime all have significant merit.

However, when viewed in the context of the Government’s stated aspiration to determine 150 DCO applications by the end of Parliament, and the scale of infrastructure investment required over the medium-long term, the proposed reforms represent further tinkering around the edges and are unlikely to move the dial. In our view, the changes won’t, on their own, or in combination with those already proposed deliver the ‘faster, more certain and less costly’ consenting regime the Government aspires to.

Only through bigger and bolder reforms (potentially to include a new consenting regime for some categories of project), and substantial additional funding and resourcing within PINS and the advisory team eco-system, will the Government achieve its long-term aims relating to the delivery of the critical infrastructure which the country needs.

The Government intends that the proposed changes will be taken forward through the Planning and Infrastructure Bill and has invited responses to a number of specific questions to help guide their thinking in this area.

For more information on the impact of the proposed changes, and what more needs to be done, please contact Mark Worcester. 

12 February 2025