UK: I'm Affected By A Nationally Significant Infrastructure Project, What Should I Do?

Last Updated: 14 March 2013
Article by Angus Walker

Today's entry is a guide to assist those affected by nationally significant infrastructure projects.

Get to know the terminology

The largest energy, transport, water, waste and waste water projects are known as 'nationally significant infrastructure projects' (NSIPs). They have to be authorised not by getting ordinary planning permission but using a special process set out in the Planning Act 2008.  You may hear of a 'Planning Act application' or a 'DCO application', DCO being short for development consent order, which is the legal instrument that allows the project to go ahead.  Other terms are 'relevant representation', 'preliminary meeting', 'written representation', 'open floor hearing', 'compulsory acquisition hearing', 'issue specific hearing', explained in what follows.

How do you know if there is an NSIP in your area?

The first port of call is the Planning Inspectorate's National Infrastructure website at infrastructure.planningportal.gov.uk Click on the blue 'Projects' button and you will see a list of projects and a map. Zoom in on the map and drag to your area and you will see blue pins for projects nearby. If you click on a blue pin it will take you to the web page for that project. Be aware that the map contains projects where applications have been made, projects where applications have yet to be made, and projects that have been withdrawn.

What can you do about a project before an application is made?

Every project on the list must undergo a pre-application consultation exercise before an application can be made. This is not advertised on the PINS website (it would be a good idea if it were), but is advertised in national and local newspapers at the time. If you own land that is likely to be affected, you should get a letter about the pre-application consultation; if you are near but not directly affected, you may get a leaflet about it. The promoter of each project will have a website about it in addition to the PINS webpage, which you should be able to find by searching for the name of the project. If you can't find anything, there are contact details at the bottom right hand corner the PINS webpage for the project.

While the pre-application consultation is running, you can read fairly detailed documentation about the project on the project website, and you will be able to attend drop-in sessions where members of the project team are available to answer questions.

It's not just a case of finding out about the project, though, this is your chance to influence its development. It is a lot easier for a promoter to change things before they make the application than after. During the consultation exercise there will be a postal or email address for you to send your views about the project, which must be taken into account in the project development. The more precise the things that you are asking for are, the more likely they are to be taken on board.

PINS have an advice note on responding to pre-application consultation, which can be found here.

They made the application, what now?

The only way you can find out if the application has been made at first is by checking the 'Register of Applications' page on the PINS website, which can be found here.

Once it is made, PINS have 28 days to decide whether to accept it.  You might wish to send in a representation that the promoter did not consult adequately on the project, although it is really only local authorities who are entitled do do this, and the subject matter must be confined the consultation and not the merits of the application.

If PINS accept the application, the promoter will advertise this shortly afterwards and this kicks off the ability to make representations (i.e. objections, or messages of support).  The same advertising will be done of this as for pre-application consultation, but the PINS website will also say that representations can be made - indeed, they are to be made via the website.  This will require reading the application documents, which will have by then been published on the website ('application documents' tab).

Again, try to set out what you want to happen as precisely as possible. It's no good just saying 'it will be too noisy', you should say 'a protective provision should be inserted in the DCO to require noise insulation to be provided to nos 1-19 Acacia Gardens, drafted as follows ...'. The initial representation you make, called the 'relevant representation' does not have to set out your concerns in detail as you will get a later chance to submit a fuller representation (counterintuitively called a 'written representation'), but you should aim to cover all the issues you are concerned about in summary.

For more details on registering and submitting a relevant representation, see this PINS advice note.

The preliminary meeting and examination

You might wish to attend the 'preliminary meeting' that will be arranged a few weeks later - you should be invited to it if you made a representation - to argue that there should be 'issue specific hearings' on issues of concern to you, or that the draft timetable should be varied in some way, but the inspector(s) only have six months to work within.  This is a procedural meeting, though, and not a chance to comment on the merits of the application.  Between one and five 'examining inspectors' will run the meeting and the examination - the number depending on the complexity of the application.

For more information about the preliminary meeting, see this PINS advice note

Once the preliminary meeting is over, a firm timetable will be published on the project's webpage on the PINS website, and you should observe the deadlines in it for written material to be submitted, including your main 'written representation'.  It is quite hard to navigate - one of my bugbears - but you should visit it regularly for updates.

You will also need to read the responses provided by the promoter and other parties and respond to them by the deadlines that have been set. This is not a job for the faint-hearted!

You can insist on an 'open floor' hearing (there will be a deadline to convey this to the inspector(s)), and if you are having land interests acquired, a 'compulsory acquisition' hearing, and you are also entitled to attend 'issue specific' hearings, the third type, if you give notice to the case officer.  You can instruct a barrister or solicitor to represent you at the hearings if you wish and can afford it.  If not, you might be able to join forces with others with similar concerns and present a joint case.

Be aware that the timetable may change according to circumstances, but if you are registered as an 'interested party' (which you will be if you made a representation) you will get updates emailed to you.  Sometimes the inspector(s) will ask for information at quite short notice, particularly towards the end of the six-month period, via so-called 'Rule 17 requests'.  Although politely called requests, they should be treated as demands, as it won't help your case if you don't reply to a request directed at you.

For more information about participating in an examination, see this PINS advice note

After the examination

You should treat the end of the examination as the last chance to make your case on the application.  After that, no more evidence can be submitted that the inspector(s) can take into account.  The inspector(s) will produce a report and recommendation to the relevant Secretary of State (depending on the type of project: Energy and Climate Change, Transport or Environment, Food and Rural Affairs) within the following three months, and then the Secretary of State has three months to make a decision.

It is possible to send correspondence to the Secretary of State before and during this period, but it should only be by way of factual update rather than making persuasive submissions to him or her about the application. The time for that has passed, and as others will not have a chance to respond, little weight will be able to be given to them.

In summary, there are multiple opportunities to participate in the process, and you will be much more effective if you (a) abide by the timetable and deadlines that have been set and (b) set out what you want to be changed as precisely as possible. Good luck!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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