Out-Law / Your Daily Need-To-Know

Out-Law Analysis 6 min. read

Change to UK NSIP consenting process ‘will lead to higher costs’

Changes in regulations and the pre-application process for nationally significant infrastructure projects (NSIPs) in the UK are expected to lead to higher direct cost and resource requirements particularly for applicants.

As part of the UK government’s reforms to the NSIP planning and consenting system, key statutory bodies, in particular Natural England, the Environment Agency, National Highways and Marine Management Organisation, can now charge applicants fees for providing statutory services throughout the process of applying for a Development Consent Order (DCO). These fee changes, which are already in force, will increase pre-application funding requirements.

In addition to the introduction of fees for statutory bodies, the Planning Inspectorate (PINS) will charge new fees for pre-application services and advice to applicants. A new Prospectus, which builds on government guidance, introduces three tiers of pre-application service by PINS and associated payment bands, and a series of new document requirements, processes and reporting steps.

These reforms are aimed at a narrowing of issues and enabling greater collaboration and resourcing at the earliest stages of a DCO project. However, the system also means that it will require considerable extra consultant cost to take projects forward.

New documents and steps required for NSIPs

New documents and steps are required in the pre-application phase for all DCO projects, regardless of their size, public interest, or complexity.

Public programme document

Applicants need to prepare and continuously update a public-facing Programme Document which explains when consultation will take place, and when the applicant is expecting to engage with statutory bodies, local authorities and other stakeholders. This will require early engagement and agreement of resourcing with statutory bodies and careful management and communication.

Issues tracker

Applicants will be required to prepare an ‘issues tracker’ to be regularly reviewed by PINS, statutory bodies and local authorities, with red, amber, green (RAG) reporting. This will then be summarised into a ‘potential main issues for examination’ document to be submitted with the DCO application to be agreed with statutory bodies and local authorities.

This step will add an additional layer of process and stakeholder communication, coordination and project management. It requires careful consideration on how issues are agreed and reported to PINS, particularly dependent on how others have resourced and engaged pro-actively, or not, with the pre-application process.

Statements of common ground

Despite the additional ‘issues tracker’ step, there is still an expectation that applicants will prepare and agree ‘statements of common ground’ and, for more complex projects, manage that, with ‘interested parties’ being encouraged to develop ‘principal areas of disagreement summary statements’. Those running projects will need to think carefully about these documents, and make sure the interface and resourcing of different reporting and responsibilities is managed to ensure consistency and avoid of duplication of work, particularly for stakeholders.

‘Have regard’ to pre-application advice given by PINS

In addition to the continuing statutory requirement to have regard to pre-application guidance, applicants will now also have to include text in their application consultation reports about how they have ‘had regard’ to pre-application advice given by PINS. This will need to be carefully reported and managed to avoid acceptance risks, through clear conformity reporting and where necessary giving good reasons where PINS advice has not been followed.

An early ‘adequacy of consultation milestone’ submission

Between statutory consultation and submission, there will now be a need for applicants to go through an early ‘adequacy of consultation milestone’, which is a written submission to PINS showing that the applicants’ consultation has been sufficient and how feedback has been taken into account. It is stated in both the Guidance and Prospectus that the submission “should include the views and any relevant supporting material from local authorities if available”. Depending on the level of co-operation and resource available within the relevant local authority and how potentially political or controversial a project is, this could prove challenging.

Three tiers of pre-application service

PINS has introduced three tiers of pre-application service, all of which involve a charge. If projects opt to be fast-tracked, they need to sign up and use the enhanced service. Although applicants can request the standard or enhanced pre-application service, PINS makes the final decision on the service appropriate to the project, which could be a lower tier than the applicant is seeking. However, as currently defined, PINS cannot force a project to go a to a higher, more expensive tier.

Basic service

The basic service, which costs £62,530 a year, offers a limited number of meetings after statutory events, with no document reviews and no involvement of Examining Inspectors.

Standard service

With the fee of £126,050 a year, the standard service provides applicants up to 6 meetings a year with some involvement from Examining Inspectors in advice given, document reviews, which include input from Examining Inspectors in respect of the DCO, and PINS officer role as observer or advisor in multi-party meetings.

Enhanced service

Priced at £208,050 per year, the enhanced service has no limits on meetings or document reviews, and offers an enhanced role of Examining Inspectors, who can be appointed to examine an application even when they have been involved in giving advice. PINS case and environmental teams can be involved as facilitators of multi-party meetings and with on-going review of the identified ‘supplementary components’.

Transition timeframe

As part of the transition to the new tiered system, PINS will issue ‘Expressions of Interest’ (EoI) to all projects currently in pre-application phase to confirm preferred services starting late May 2024. Some projects have already received an EoI. All projects should expect to be confirmed within a service tier before the end of August 2024.

For all projects that have requested an Environmental Impact Assessment (EIA) scoping report before 30 April 2024, charging will begin on 1 April 2025, except for projects opting for the enhanced service. For projects seeking enhanced service, the charging will begin on 1 October 2024. That later date also applies to any project which has not requested scoping by 30 April 2024.

Implications for projects submitting in late 2024 and early 2025

Given the changes, and consideration of resource availability within PINS and the statutory consultees, it is expected that many projects will aim to complete the pre-application process by the April 2025 cut-off. For projects submitting applications late 2024 and early 2025, there are several matters to pay close attention to.

Applicants and promoters of NSIPs should prepare to deliver additional documents and comply with the steps that are now required for the pre-application phase. They should also consider developing some of the ‘supplementary components’ that are compulsory for the enhanced service, even if they have not opted for this service or to be classed as a ‘fast track’ project.

Assuming a usual service, such as meetings and document reviews, these should continue on a proportionate basis, prior to the new three tiers of service coming fully into effect and operation.

Providing some of the ‘supplementary components’ of the new processes when they are not compulsory will help PINS and stakeholders through the pre-application process, delivering better outcomes and focusing issues for examination. These components are mostly refinements to current and best practice.

As a minimum, supplementary components should include:

  • a policy compliance document, which most projects already need;
  • a design approach document, which will likely involve re-packaging information that projects normally include in design reports or design and access statements;
  • mature control documents, commonly used by promoters that allow for project flexibility; and
  • compulsory acquisition and temporary possession evidence set out in application documents or at examination, reflecting current practice.

In line with the new Prospectus and Guidance, there is also an expectation that specific engagement will be undertaken on the design of projects, including with local community groups. The increased focus on ‘good design’, which has been highlighted in the National Infrastructure Commission Design Principles and in the updated National Policy Statements, means design can no longer be an underrated aspect of project development.

Applicants that are regulated businesses seeking to recover these new costs under a regulatory funding framework will need to be engaging with their regulators to explain what they are and why they are required. Further detail will be needed on exactly what is provided by the statutory bodies and PINS in return for the fees paid, including how deliverables will be managed as part of applicants demonstrating value for money to regulators. However, this process will be set clearly within the context of legislation and guidance requiring applicants to pay the costs set by the statutory body. This removes ambiguity on the principle of these costs, although costs will still need to be fully justified, such as the choice of tiered service.

Changes for ‘fast track’ projects

The new Prospectus shows that when applying for a project to be fast tracked in the consenting process, it will now involve additional processes and documents as set out in the enhanced service. This will require re-thinking of how projects engage stakeholders and PINS itself.

However, there is no guarantee of the statutory ‘fast track’ being secured. This is because the Guidance and Prospectus both acknowledge that, even if all that time and cost is invested, ultimately the Examining Authority or Secretary of State could decide, in examination, that the full six months’ time periods are still needed.

Although this approach could be helpful in narrowing and moving contentious issues forward, it may ultimately not lead to time savings in the overall consenting process and will increase commitments, documentation, costs and process in the pre-application phase.

Co-written by Olivia Henshall of Pinsent Masons.

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