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Navigating the 'rigid and evolving' Nationally Significant Infrastructure Projects consenting regime

Out-Law Analysis | 18 Feb 2016 | 11:15 am | 1 min. read

FOCUS: The consenting regime for Nationally Significant Infrastructure Projects (NSIPs) can be rigid and is still evolving, which means that there is plenty that promoters, consultants, advisers and the Planning Inspectorate (PINS) can learn from each other.

The application process

PINS told a recent conference that it wants applicants to make sure applications live by 'the three Cs' by being compliant, concise and comprehensive.

This is solid advice, although it takes very careful choreography to make your application documents both concise and comprehensive. Most NSIPs are judged first and foremost against their compliance with the relevant National Policy Statements, while legislative tests including those set out in the Habitats Regulations give the secretary of state little or no scope for discretion, meaning what is included in the application is of paramount importance.

Increasing efficiency

Looking at the procedural side of the application process, PINS recognise that minimising timescales is in everyone's interests. It is currently piloting the twin-tracking of examination 'events', such as written questions requiring a response or multiple hearings dealing with different aspects of the application. Project promoters can therefore expect to have to prepare for and deal with more than one examination event at a time, rather than working their way through a linear chain of events throughout the maximum six-month examination period.

While PINS' new approach may ultimately shorten the overall timetable for a decision to a degree, promoters may find their examination workloads increasing.

Impact of the National Infrastructure Commission

DCLG referred to the current consultation in relation to the governance and structure of the new National Infrastructure Commission (NIC), and how its recommendations may ultimately play through into the planning system.

Sensibly, given the ongoing consultation process, nothing new was raised here. However, those of us attending the conference were encouraged to respond to the consultation with our views on how the new body, which will ultimately provide independent advice to ministers and parliament on the UK's long-term infrastructure needs, should be constructed in order to maximise investor certainty. Nothing is more central to getting new infrastructure actually built.

Development consent orders

Strategic planning expert Jan Bessell of Pinsent Masons, the law firm behind Out-Law.com, summarised the great potential available in terms of design, detail and achieving what you ultimately want to build which can be achieved through the use of a development consent order (DCO).

Whether your DCO allows development to occur in different ways, permits the Secretary of State to choose between options or allows alterations within the confines of your assessments, there are many ways that a DCO can give you flexibility and a robust consent if fully thought through from early in the process.

Nick McDonald is a planning law expert at Pinsent Masons, the law firm behind Out-Law.com.