‘Legal duty to engage’ proposed to drive UK national infrastructure development

Out-Law News | 01 Oct 2021 | 3:46 pm | 2 min. read

Local authorities, utility companies, Network Rail and public agencies such as Natural England, Historic England and the Marine Management Organisation should be subject to a new legal duty to engage in the planning process for ‘nationally significant’ infrastructure, experts have recommended.

The National Infrastructure Planning Association (NIPA) said its proposal would speed up development consent for major UK infrastructure projects.

The recommendation, endorsed by NIPA board secretary Robbie Owen of Pinsent Masons and colleague Jan Bessell, who sits on the NIPA Council, was set out in a new NIPA paper co-authored by Owen and Bessell that contains further proposed reforms aimed at improving the Planning Act 2008 regime that regulates the application  and authorisation process for nationally significant infrastructure projects (NSIPs).

“There are few requirements or incentives on third parties, particularly statutory bodies and utilities, to fully and proactively engage in the process when invited to by a developer pre-application, and current general legal obligations are insufficiently focussed so not effective,” NIPA said. “The current lack of, and in many cases less than is required, engagement causes real delays and additional expense, as well as unresolved matters in examination and even at the decision stage.”

“NIPA considers that a ‘legal duty to engage’ – to participate in and to facilitate the process – should be imposed on all third parties having relevant statutory functions; and developers should be required to engage meaningfully too with both these bodies and affected communities,” it said.

Among the other proposals set out in the NIPA paper is a recommendation aimed at streamlining the current assessments process associated with making applications for development consent for NSIPs.

NIPA said that a combined assessment process covering environmental impact assessment, habitats regulations assessment, equalities impact assessment and water framework directive assessment requirements “in one ‘hit’” would provide “a quicker, simpler and easier to understand framework”.

In the paper, NIPA said that the NSIPs regime has “lost some of its purposefulness” and outlined proposals to address this. They include enabling developers to include all construction-related consents in a development consent order (DCO) if they want to and can justify it “without those bodies who would otherwise issue those consents having to agree to this as a legal requirement”. NIPA said that this was “the original intention of the ‘single consenting regime’, but it was never given full effect”.

NIPA also proposed major changes to the national planning policy backdrop applying to NSIPs. Development consent for proposed NSIPs is currently considered against ‘national policy statements’ that reflect the government’s priorities for development and conditions developers should meet to ensure their application is successful. A raft of draft new national policy statements for energy infrastructure was recently published by the government. NIPA said, however, that the policy statements “have worked less well in recent years as they have steadily become out of date with technology, markets and policies”.

To address this issue, and the challenge facing government in regularly reviewing the suite of national policy statements (NPSs), NIPA said that consideration should be given to aligning the review of those policy statements with the five-yearly refresh of the UK national infrastructure strategy, which is itself a product of the five-yearly national infrastructure assessment that the National Infrastructure Commission prepares.

“This would not only provide a structured way for regular reviews but also overarching NPS policies would then be more consistent across different infrastructure sectors, where they can be, removing duplication and inconsistency between sectors,” NIPA said in its paper. “This more structured and more efficient approach to setting and reviewing government infrastructure planning policy would benefit all: government, investors, developers, stakeholders and interest groups.”

Robbie Owen of Pinsent Masons said the NIPA proposals had been “received well” by the National Infrastructure Planning Reform Board (NIPRB) when NIPA recently presented them to the body, which the government has set up to drive reform in an action derived from the UK national infrastructure strategy published last year.

The UK government is currently carrying out “a comprehensive end-to-end review” of the NSIPs process “and all its interactions” and Owen said that NIPA would build in the proposals in its paper responding to the government’s consultation on the matter, which runs until 17 December.