Government help needed to keep planning regime for national infrastructure on track

In a paper published on Tuesday, the National Infrastructure Planning Association (NIPA) suggested that finding ways to allow work on NSIPs to continue safely and equitably could help the economy during the pandemic and also help restore the economy once restrictions are eased and then lifted.

The paper set out a number of proposals to overcome the disruption that the Covid-19 restrictions are currently causing to the Development Consent Order (DCO) regime, which is the way that NSIPs are given planning consent. In particular, it starts by recognising the need to ensure a fair and accessible process and support for equality groups, as well as recognising stretched and redeployed public sector resources, but then looked specifically at problems regarding access to documents, consultation, examination hearings, and visiting sites.

Suggested changes include allowing applications and associated documents to be available for inspection online, which would avoid the need to make printed versions available for inspection by the public.

In addition, NIPA said the requirement for site notices to be posted should be suspended, and examination meetings and hearings held virtually.

Site surveys, site inspections and any other travel connected with preparing or engaging in a DCO application are, however, still possible as they are in accordance with Covid-19 travel restrictions.

A current legal requirement is that NSIP site inspections by those examining DCO applications are held "in the company of any interested party or their representative". NIPA is proposing that this requirement is classed as being met if interested parties have been consulted in advance and the site visit records are made public.

In cases where a DCO has been granted but the powers are due to expire before 31 March 2021, NIPA has suggested that these powers be extended by 12 months because of the likely impact of the coronavirus on the construction industry and local government and therefore on implementation of the DCO.

Central to all these proposed changes is the suggestion that applicants should be able to benefit from general and specific waiver directions given by the Secretary of State for planning in England when they are not able to complete certain procedural steps because of Covid-19 restrictions. A similar concept has always been allowed under the Transport and Works Act 1992 consenting regime and has already been used in the current emergency for a Network Rail project proceeding under that regime.

The suggestion to use waivers in the DCO process was devised by Robbie Owen and Jan Bessell, public policy and planning law experts at Pinsent Masons, the law firm behind Out-Law, who both helped write NIPA's paper.

Owen said: "We don't know how long the current restrictions will continue and therefore it is important to build in some flexibility in the planning system regime."

"We devised the waiver direction as an agile approach which will minimise the amount of legislative changes that are needed and as an approach that can be adapted to the current circumstances and indeed any future circumstances," he said.

A general waiver direction could, for example, allow notices connected with DCOs to be delivered by email or by standard – not recorded – post. A specific waiver direction could, for example, recognise that it may not always be possible to comply with a statutory requirement to publish notices connected with DCOs in local newspapers on two successive weeks.

Bessell said: "Ensuring all can participate and take part in a fair and accessible planning process despite the current circumstances has been our starting point. We also hope that the recommendations will deliver improvements in accessibility well beyond the current emergency."