UK government lays out plan to streamline the development of critical infrastructure

The UK government has unveiled ambitious proposals for an action plan aimed at reforming the Nationally Significant Infrastructure Projects (NSIP) regime. The policy paper on streamlining infrastructure planning, which invites views on further action the government could take through the planning system, develops six pillars of reform to make the NSIP regime more strategic, better at updating policy, faster, greener, fairer and more resilient.

Critical infrastructure

The government’s NSIP proposals are a significant step towards streamlining the development of critical infrastructure in the UK. The plan seeks to address the inefficiencies and delays that have plagued the NSIP regime, with the goal of fostering a more efficient, transparent and resilient infrastructure development process.

This initiative is part of a broader sweep of planning reforms designed to remove barriers and expedite the delivery of essential projects. In the last year, the government has removed the de facto ban on onshore wind , announced plans to amend the thresholds for large-scale onshore wind and solar NSIPs, granted consent to almost 2GW of solar projects and committed to reducing the number of judicial review attempts for NSIPs identified by Lord Banner KC.

NSIP regime challenges

The ongoing challenges facing the NSIP regime are well known. In 2021, the average time to secure consent for a project was 4.2 years, compared to 2.6 years in 2012. The increasing length and complexity of documents underpinning consents, a rise in litigation and consultees treating the pre-application phase as a negotiation have all contributed to escalating costs and delays.

Additionally, the consultation phase has become more cumbersome for applicants. With unclear requirements leading applicants to undertake a "gold-plated" consultation process to mitigate any risks, statutory pre-application time frames have extended from 14 months in 2013 to 21 months in 2021.

The government has focused on three of the six pillars, notably "better", "faster" and "more strategic" in establishing its current reform proposals to address some of the ongoing challenges facing the NSIP regime.

National policy statements

The first area for reform is of the "national policy statements" (NPSs) both in terms of establishing a streamlined updating process and encouraging more regular updates.

The government has proposed to update relevant NPSs every five years to provide more certainty to investors, developers and communities. While the latest NPSs came into force on 17 January 2024, prior to this, the last update had been in 2011. Subsequent changes in technology have rendered the 2011 NPSs outdated and in need of revision. With the Planning Act 2008 requiring examining authorities to consider policies (including NPSs) during the consenting process, regular updates to the NPSs should ensure that these can keep pace with technological and societal developments.

The government has also suggested revising the current procedure for updating NPSs. Currently, the procedure for updating these is as rigorous as introducing new ones and involves extensive consultation, publicity and parliamentary scrutiny. The new plan suggests a more streamlined process for making material amendments, which would be dubbed "reflective amendments".

The idea is that the updates to the NPSs would respond to legislative changes, governmental policy updates and court decisions in order to keep them compatible. The new updating process would remove the need for public and parliamentary scrutiny on the basis that the changes reflect already scrutinised legislative or policy updates. This approach aims to ensure that NPSs remain current and reflective of the latest policies and legislative changes, thereby reducing uncertainty and delays in the planning process.

Consultation changes

The NSIP plan then looks to make various efficiency updates to the consultation process.

This includes commitments to amend the Planning Act 2008 to support more outcome-based judgements in application acceptance requirements. The government hopes that this will ensure more proportionate consultations and a reduction in risk of the applicant being required to withdraw their application.

A new duty will also be imposed on all parties to identify and narrow down areas of disagreement during the pre-application stage. While this will increase the burden on applicants to communicate transparently, it will also require consultees to provide substantive responses. The aim is for the secretary of state to have greater clarity on the issues that remain unresolved in the applications, on matters that have already been discussed and on to account for a lack of engagement.

Additionally, the government has proposed that consultation reports will be revised to allow more concise and thematic summaries of feedback, and the requirement to consult "category 3" persons – those who may be able to claim compensation for diminution in value of their property from the operation of the scheme – will be narrowed. These changes aim to streamline the consultation process, making it more efficient and less burdensome for all parties involved.

Post-consent adjustments

The government is not only focusing on the pre-application stage but also what happens post-consent.

Encouraging the use of section 150 of the Planning Act 2008, which allows NSIP applications to remove the need for further prescribed consents or authorisations, is a significant proposal. Given the lack of use of this existing power, the hope is that expressing encouragement of its use will ensure that NSIPs act as their intended one-stop shop for applicants. The government is also considering extending this approach to other licences, similar to deemed marine licences under section 149A.

Changes to the development consent order (DCO) correction process are also proposed, including publishing a draft order with the decision letter and allowing a two-week window for applicants to propose minor corrections. The aim is to avoid the common current convoluted process where DCOs that contain minor typographical or referencing errors need to be corrected through a correction order.  

The government is also proposing removing the distinction between material and non-material changes post-consent to reduce debates over the appropriate process.

These adjustments aim to make the post-consent phase more flexible and responsive to the needs of the project.

More flexibility

The NSIP proposals also seeks to make the NSIP regime more resilient and adaptable to different sectors, such as energy, transport and wastewater.

Proposals include alternative consenting routes where this is deemed more appropriate for specific projects, as well as giving the secretary of state the power to adjust the DCO process for certain project types. Under section 35 of the Planning Act 2008, there is a current power for the secretary of state to direct that a project may enter the NSIP consenting regime but no equivalent power to direct it out of the consenting regime.

The government is proposing the creation of a power to streamline how to determine which projects enter the regime. This is likely to be welcome news for solar developers wishing to use the Town and Country Planning Act 1990 and not wanting to arbitrarily cap their application at the NSIP threshold (soon to be 99.9MW).

This flexibility aims to address sector-specific needs and encourage cooperation among local planning authorities for complex projects. For example, solar projects with limited planning, land and environmental issues could benefit from a more streamlined process, while complex and lengthy linear projects like grid and transport schemes could see modifications to the consultation process to encourage cooperation between different local planning authorities.

Clearer statutory guidance

The government is committed to ensuring that the NSIP regime is fair and transparent. This includes clearer and more effective statutory guidance, with new powers for the secretary of state to make guidance across the entire consenting process under the Planning Act 2008, in order to reduce ambiguity and improve the overall efficiency and effectiveness of the NSIP regime.

Osborne Clarke comment

The government’s commitment to getting Britain building again and driving 2030 clean power commitments is evident in this comprehensive reform plan. With the government committing to determine at least 150 NSIPs by the end of Parliament (more than the total made since the NSIP regime began in 2011), the need to reform is evident and this consultation seems to address many of the current issues raised by those using the NSIP regime. We wait to see how this will impact those in the DCO process and whether the feedback on such proposals is positive.

The NSIP plan also highlights that it is part of a series of working papers on planning reform. While we have seen numerous proposal reforms, this leaves us questioning what further changes may be on the horizon for the NSIP regime. One of the critical aspects is the need for the system to be more agile in adapting to current trends and changing demands, rather than waiting to fix everything in one go (i.e. through updated NPSs at five-yearly milestones). One would hope that this working paper is the first step to addressing this.

The NSIP plan represents a bold move towards a more efficient and resilient infrastructure development process. By addressing the current challenges and introducing targeted reforms, the government's aim to create a more strategic, faster, greener, fairer, and more resilient NSIP may unlock infrastructure development in the UK.