Will the Planning and Infrastructure Bill deliver a faster and more certain consenting process for nationally significant infrastructure projects?

Since its inception over 15 years, the nationally significant infrastructure projects regime (NSIP) has been a success in terms of approvals of infrastructure projects and their subsequent delivery. The professionals involved in procuring, advising on and constructing these infrastructure projects have also gained significant expertise over this period, pooling their insights and experiences through groups such as the National Infrastructure Planning Association.

Despite its success, a common concern among those involved in NSIPs is that the consenting regime is relatively slow and has been sluggish to evolve in regulatory and policy terms to meet the changing demand for infrastructure and the collective learning from 151 applications that have been determined.  

In March, the government  published the Planning and Infrastructure Bill (PIB) with the aim of achieving its objective to deliver "a faster and more certain consenting process for critical infrastructure." The PIB has completed its second reading in the House of Commons and is in committee stage.

The Bill goes some way towards bringing the NSIP consenting regime up to speed, with a focus on national policy statements (NPSs), the power to disapply the requirement for development consent, limitations on the need for consultation and a more robust approach to preventing unmeritorious legal challenges.  

National Policy Statements

The issue 

NPSs form the backbone of the policy support for NSIPs. They have been updated from time to time but with no consistency of approach or regularity. This has led to a position where policy has lagged behind changes in demand and in some cases failed to recognise the relevant sector or industry position.

For example, until recently, the energy NPSs did not address or expressly recognise solar as one of the main technologies in delivering renewable energy to meet successive governments' net zero objective. Instead, the energy NPS remained static, reflecting a time where onshore wind was expected to be one of the main contributing technologies.

Also, the recent proposal to allow datacentres, gigafactories and laboratories to be designated as NSIPs will not be subject to express policy support through an NPS unless there is an update to reflect this. In fact, none of the NPSs address business and commercial schemes.

The changes

The PIB introduces a number of requirements with the aim of keeping NPSs up to date and relevant.

In particular:-

1. the secretary of state must review NPSs as regularly as they determine appropriate;
2. NPSs must be reviewed in full within five years of designation. NPSs designated before this requirement to review is brought into force, and if they are not updated before that date, will have to be reviewed within two years of the requirement coming into force if not updated  before that date; and
3. each NPS must be amended, following a full review, every five years. 

These changes will go some way to address concerns across the industry over whether policy can keep pace with the change in demand and the emergence of different types of infrastructure and technologies in the market.  

Disapplying the requirement for development consent

The issue 

Presently, project promotors are required to pursue development consent orders (DCO) for all projects categorised as NSIPs. The DCO regime can be time consuming and costly and a significant commercial risk for project promoters. For smaller NSIP projects, such as solar projects that are just over the 50MW capacity threshold, the inflexibility of the DCO application process and the cost and timescales applicable have led to project promotors scaling back proposed schemes. This has enabled them to stay under the threshold and within the Town and Country Planning Act 1990 consenting regime and limited the potential growth and development of much-needed infrastructure.  

The change 

To address this issue, the PIB introduces provisions that address this issue and allow project promoters to apply to the secretary of state for a direction enabling development to be consented under an alternative consenting regime.

The project promoters will need to explain why an alternative consenting regime is appropriate. They will also need to evidence that the alternative consenting authority is aware of the intention to request a direction.

The direction can also: provide that an existing DCO application is treated as an application under an alternative consenting regime; specify legislative provisions from alternative consenting regimes to have effect to the project in question, with any specified modification; and provide that legislative conditions or rules are to be treated as having been complied with. 

Consultation

The issue

Presently, there is a requirement to consult "Category 3 persons" when pursuing a DCO. Category 3 persons are those who could make a "relevant claim" as a result of the DCO. For large-scale linear projects, this category often comprises hundreds of people creating a time-consuming and sometimes unwieldly process

The change 

The PIB proposes to remove the need to consult with Category 3 persons. This should streamline the presently cumbersome and often time-consuming procedural requirement and will allow the focus of the consultation process to be on those most directly affected: landowners and those with interests in the project land.

Legal Challenge

The issue 

Presently NSIPs and the designation of an NPS can be subject to meritless judicial review claims. Even when an application for permission to pursue judicial review fails in the High Court, the claimant can appeal the decision to the Court of Appeal. This leaves open the door to the use of these claims as delay or ransom tactics and encourages too many speculative applications. 

The change

The PIB will introduce the fast-tracking of legal challenges and create more limitations around their pursuit when meritless.

A power will be introduced to make new civil procedure rules:- 

1. to enable applications to be decided at an oral hearing, as opposed to on paper with an option to request an oral hearing where an application is refused on the papers; and  
2. at oral hearings, the court will be able to determine whether an application is wholly without merit.

Equally, a claimant will be precluded from pursuing an appeal to the Court of Appeal if they have been refused permission to apply for judicial review and the High Court has decided that the application was wholly without merit.  

This collectively should ensure the swift resolution of meritless claims and stop speculative claims, particularly those intended to delay projects or to be used as a ransom tactic, in their tracks. 

Osborne Clarke comment

The government has set ambitious targets for the delivery of 1.5 million houses over the next four years and for 150 NSIPs to come forward in the same period, which is double the total number determined over the duration of the regime to date.

The fine tuning of the consenting regime and the policy underlying the support for infrastructure projects is much needed and timely in the context of the targets. Many believe that the PIB does not go far enough in introducing measures to streamline the consenting process. However, the government has to deliver a great deal in a short period of time, so a significant re-writing of the consenting process was unlikely to be featured in the PIB.

Separate measures include regulations to change the threshold for solar projects, so that more of these can gain consent under the Town and Country Planning Act 1990 regime. The reintroduction of onshore wind to the NSIP regime as well as the ability to elect datacentres, gigafactories and laboratories in to the NSIP regime indicate that the government is listening to the infrastructure community.

The government has further demonstrated this openness through its willingness to introduce provisions to enable the infrastructure industry to come forward and meet demand and policy goals.