Major infrastructure planning regime changes to follow under finalised bill

The bill was passed by parliament following months of scrutiny and takes aim at barriers to the development of national infrastructure, which the UK government consider stifles economic growth. The government has set a target of fast-tracking 150 planning decisions on major infrastructure projects by the end of the current parliament.

Read more on the Planning and Infrastructure Bill:

• Streamlined planning decisions in England envisaged under finalised law

Robbie Owen, an infrastructure planning and development consent order (DCO) expert at Pinsent Masons, welcomed the conclusion of the parliamentary stages on the bill and the finalisation of its provisions. He said it means the all-important work of its implementation can proceed in earnest. Owen said: “The government’s drive to get the bill through and to implement it rapidly should be commended, as the changes it will bring are much needed and can’t come soon enough.” 

However, Owen cautioned against considering the bill to be finished business: “There are many, including myself, who have said, and still believe, that the bill should have been bolder and more innovative. Whilst the changes in the bill are arguably the most urgent ones, a head of steam is undoubtedly building for further planning provisions to be brought forward in order to help a raft of critical national priority projects in water, transport and energy. If that doesn’t happen, those projects will be materially delayed and so will the economic growth that they will provide.”    

The NSIPs consenting regime, introduced under the Planning Act 2008, was established   to govern the approval process for nationally significant energy, transport, water, wastewater and waste infrastructure projects.  The 2008 Act prescribes the thresholds that apply to different types of infrastructure for the purposes of determining whether a project is in-scope of the NSIP regime or falls to be determined via other consenting routes, particularly the Town and Country Planning Act 1990. In 2013, certain business and commercial projects were added to the list of projects capable of being ‘directed in’ to be consented under the 2008 Act – and this list will shortly be expanded to include data centres.

Developers promoting NSIPs require a DCO to proceed with their projects. The DCO process is different to other consenting regimes where decision-making powers largely rest with local planning authorities – decisions on DCOs are made by the relevant secretary of state after following strict procedural requirements. The bill, when implemented, will make a series of changes to these procedural requirements, the aim of which is to speed up the consenting process.  Planning minister Matthew Pennycook has previously said that proportionate and timely processes for decision-making are “particularly important for the NSIP regime, which is the primary route for consenting critical infrastructure projects in the national interest”.

Uniquely, the NSIP regime under the 2008 Act includes statutory requirements for promoters to undertake consultation prior to the submission of an application for development consent, which has become a “tick-box exercise that encourages risk aversion and gold-plating”, according to Pennycook, resulting in “consultation fatigue”, disincentivising improvements to applications.

Going forward, there will no longer be a legal requirement on promoters of NSIPs to consult certain interested parties following the removal of these statutory pre-application consultation requirements, with the requirement to consult on ‘preliminary environmental information’ also removed, bringing requirements in line with all other planning regimes. Instead, the steps developers will need to take during the pre-application stage will be governed by new best practice guidance, expected to be issued by the secretary of state in early 2026.

Anticipating the regime changes made by the bill, the government consulted in September and sought views on how best to implement some of the most significant reforms, as well as other proposals that support the application process for development consent. The government confirmed that it “still expect[s] high-quality early, meaningful and constructive engagement and consultation to take place with those affected by NSIP proposals”. At that time, it also floated proposed changes which could force developers to take-up specific pre-application services offered by the Planning Inspectorate (PINS) in order for their applications to proceed to examination.

Also relevant to the pre-application stage, the bill strengthens powers to enter land for the purposes of conducting preliminary surveys, broadening the scope of who can be authorised to access land. The associated requirements around the notice promoters and developers must provide landowners and occupiers with have been tightened, but there is also a new judicial process that developers can trigger to obtain a warrant for using reasonable force to enter land where access is unlawfully prevented.

By a last-minute amendment to the bill, the acceptance criteria for DCO applications now remain the same, but in future PINS will be obliged to provide a written statement of the reasons for refusing to accept applications.

Another change to the NSIP process is that PINS examiners will specifically have to take into account their initial assessment of the principal issues associated with the proposed NSIP, undertaken at the pre-examination stage, when planning and timetabling the examination. This could cover things like environmental impacts and community concerns.

To inform examinations, local authorities must prepare local impact reports, while there is scope for other public authorities to make representations on DCO applications too. The bill will require these stakeholders to have regard to new government guidance when inputting on NSIP examinations in the future, focusing on relevant issues as guided by national best practice. An improved costs regime is also provided for, under which examiners have scope to decide that one party should pay another party’s costs incurred in relation to an examination or a proposed examination.

Gordon McCreath, energy and infrastructure consenting expert at Pinsent Masons, said: “There is a lot to welcome in the finalised bill and the consultation on the further detail that will follow. The consultation’s focus, in particular, on a ‘big issues-led’ approach to examination could significantly improve the efficiency – and potentially the length – of DCO examinations. However, the government must maintain a pinpoint focus on the benefits sought from the legislative changes, when setting the more detailed requirements to flow from them. The guidance on consultation, for instance, needs to be crystal clear that, fundamentally, consultation is not required and how much consultation is done is at the risk of the developer. Less consultation may result in a more difficult examination for the developer, but it should not result in non-acceptance of the application.”

DCO applications are determined with reference to national policy statements (NPSs), which set out the policy framework for decisions on DCO applications. Specific NPSs have been developed and apply to specific types of NSIP. The government has decided that NPSs need to be reviewed and updated more regularly, so that they accurately reflect government policy and priorities. The bill provides for this and requires NPSs to be reviewed and updated when the secretary of state “thinks that it is appropriate to do so”. A full review will need to be conducted at least every five years.

In a recent parliamentary debate on the Bill, Baroness Taylor said that “streamlined updates” to NPSs “were appropriate when changes simply reflected published government policy, legislation, updated documents or  court decisions” . She said the “Bill ensured NPSs remained current, with proportional scrutiny supported by commitments to notify Select Committees, provide ministerial evidence and allow 21 sitting days before changes took effect”. The government cannot unilaterally update the NPSs, however, as modifications will still be subject to sustainability appraisal, public consultation and parliamentary approval, and in most cases prior parliamentary scrutiny as well.

Specifically, in relation to water infrastructure projects, the bill expands on which water infrastructure projects count as “nationally significant,” amending definitions in the 2008 Act. Once enacted and brought into force, the amended provisions will mean that more water projects, including new reservoirs, water transfer schemes and desalination plants, whether led by a water company or its appointed partner, will automatically fall under the NSIP regime.

In some cases, promoters might find it advantageous for their proposed projects to be determined via alternative consenting routes, even where the project is within the scope of the 2008 Act because it meets the relevant threshold for an NSIP. The bill provides the secretary of state with a new power to disapply the requirement for development consent on a case-by-case basis and therefore to accommodate such an ‘opt out’.

The secretary of state will be able to give a direction that a particular infrastructure project does not require a DCO, meaning it can then be consented via an alternative route. However, strict conditions will apply – including that no DCO application has been submitted ahead of such a request and that an appropriate alternative consenting route is identified. This new provision is the mirror image of the provision already in the 2008 Act that allows promoters to request that their projects are brought within the scope of the NSIP regime for determination via the DCO process where they do not meet the NSIP thresholds specified in the Act.

Other provisions of the bill simplify and clarify the process by which DCOs that have been made can be later modified or revoked, while limited provision has also been made for narrowing the scope for judicial review challenges against NPSs or DCOs.

Reform of the consenting regime for electricity infrastructure projects in Scotland is provided for under the bill too, and further changes in the bill will also impact on the consenting of non-NSIP projects under the Highways Act 1980 and the Transport and Works Act 1992.