Infrastructure project ‘fast-track’ process ‘re-design’ proposed

The UK government has opened a new consultation in which it set out a series of proposals aimed at streamlining the infrastructure planning process for NSIPs.

NSIPs are 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. Decisions around development consent are taken with reference to national policy statements (NPSs), which differ for the various different types of infrastructure that might be developed.

In March this year, the government introduced a new Planning and Infrastructure Bill into the UK parliament in a bid to remove hurdles to the development of economic and social infrastructure that it considers essential for UK growth. Proposals to streamline the consenting regime for NSIPs form part of the Bill, which is currently under scrutiny by peers in the House of Lords. The government’s new consultation addresses the implementation of some measures provided for in the Bill, including inviting comment on new guidance that will support developers’ pre-application work, but it also addresses further reforms to the way existing services specific to the NSIP process operate – including the pre-application and fast-track services run by the Planning Inspectorate (PINS).

The pre-application service PINS operates has three different tiers – basic, standard, and enhanced – which each entail a different level of service offering, in terms of number of meetings, document reviews and advice, as well as associated differences in fees.

Use of PINS’ pre-application service is voluntary, however the government is eager to encourage greater take-up of the service to ensure issues that could delay applications from proceeding are flushed out at an early stage of the consenting process, to enable applicants to address stakeholder concerns and ultimately bring higher quality applications forward for formal examination.

According to the government, however, at the moment, just 5% of users of the PINS pre-application service take up the ‘enhanced’ service option. This, it said, means developers behind often “complex and high priority projects” that could benefit from the “additional advice and input from the Planning Inspectorate” are missing out. It also means very few of projects “deemed a critical national priority” are eligible for the PINS’ fast-track examination service, since use of the ‘enhanced’ pre-application service is a requirement for those wishing to take subsequent advantage of the fast-track procedure.

The government said it is considering reforms to the pre-application services regime, including potentially giving itself the power to determine which level of pre-application service is open to developers.

“We are considering how best to give government more input into the services provided to priority projects, so that they receive the co-ordinated and timely pre-application support they need to deliver robust and swift examinations and decisions,” the government said in its consultation paper. “This may include making changes to the Planning Inspectorate’s services, practices or to guidance, so that applicants are provided with the most appropriate level of pre-application service, taking into account the individual circumstances and complexity of the project – including the sector, novelty, prior experience from the sector, local controversy –  and whether it is a high priority for government.”

“One option could involve a shift in approach so that it is a decision by government and its statutory bodies about what level of pre-application service is appropriate and therefore offered to the applicant,” it added.

In tandem with this, the government is considering reforms to PINS’ fast-track examination service. The current procedure was provided for by the previous Conservative-led government and aims to ensure applications for development consent that meet certain eligibility criteria are decided upon within 12 months of being accepted for examination. However, to date, no project has gone through the fast-track process.

The now Labour-led government has set a target of fast-tracking 150 planning decisions on major infrastructure projects by the end of the current parliament and, to achieve that, wants to relax the existing eligibility criteria for the service to address the “overly restrictive and inflexible” way it currently operates.

Under those proposals, developers would no longer need to make use of PINS’ enhanced-level pre-application service for their subsequent application to be eligible for the fast-track procedure. In addition, a further criterion that concerns whether the application meets quality standards would be updated with the government’s infrastructure objectives in mind.

It said: “This means that the extent to which projects meet the standard will be considered as part of an overall assessment of suitability, with the judgement taking into account the priority and need for the project/project type, as outlined in NPSs and government missions. This means there may be circumstances where government approves a project to be fast-tracked even if one or more of the tests has not been met. This could affect the point in the process in which a project can be directed into the fast-track process. We would expect this only to be the case in exceptional circumstances.”

The government’s consultation is open until 27 October.