This article sets out the detail of DLUHC's consultation on operational reforms to the Nationally Significant Infrastructure Project consenting process.
As we narrowly missed reporting on it during our webinar on DCO hot topics on 20 July 2023, we wanted to provide a summary of the content of the Department for Levelling Up, Housing & Communities' consultation on operational reforms to the Nationally Significant Infrastructure ("NSIP") consenting process which opened on 25 July 2023. This article will be supplemented by a series of blogs by solicitor Olivia Heininger with her thoughts on the key implications.
The consultation builds on the five reform areas identified in the February 2023 NSIP Reform Action Plan (the "Action Plan") with the overarching aim to future-proof the NSIP regime "by making the NSIP consenting process better, faster, greener, fairer and more resilient by 2025". The consultation focuses on three reform areas to:
- support faster consenting;
- recognise the role of local communities and strengthen community engagement with NSIPs; and
- improve system-wide capability and capacity and build a more diverse and resilient resourcing model.
We have summarised the key proposals below.
Strengthening the role of the pre-application stage
The consultation seeks to ensure that the pre-application stage of the Development Consent Order ("DCO") process undertaken with the Planning Inspectorate ("PINS") is effective and proportionate to the scale and complexity of infrastructure projects. This was a key focus of the Action Plan and it is interesting to see how this is manifesting in practical proposals.
Several improvements are proposed to tackle delays at the pre-application stage and failures to adequately identify and resolve key issues prior to application and examination:
- Introducing a chargeable 3-tier pre-application service offered by PINS to help applicants bring parties together to identify and address potential examination issues. The tiers will cater for projects of different size and complexity, being: 'basic', 'standard' and 'enhanced' and in general will reflect the level of resource input required by PINS. More detail on these is set out in Box 1 of the consultation. A decision on the appropriate tier will be made by the applicant in consultation with PINS and it will be possible to change between tiers at the end of a 12 month "subscription" period.
- Amendments to existing section 51 advice to enable PINS to provide 'without prejudice' merits and procedural advice relating to potential examination issues and the potential for an application to proceed beyond the pre-application stage. This advice will, of course, not bind PINS or the appointed Examining Authority into any decisions and will not consider the likelihood of consent. Box 2 of the Consultation sets out the 'wills' and 'will nots' of this service.
- Updates to the consolidated list of prescribed bodies to help applicants identify which statutory consultees must be consulted and when including adding Neighbourhood Planning or Development Groups and the Office for Health Improvement and Disparities as well as removing bodies which no longer exist.
- Introducing an early 'adequacy of consultation' milestone as part of PINS's pre-application services to provide greater clarity over requirements for consultation which is proportionate to the scale and likely impact of a project as well as making revisions to the outdated 2015 guidance on pre-application consultation and what is required for an application to be accepted.
Operational reform to support faster and more proportionate examinations
The consultation recognises that the examination process often takes the full 6-month period allocated by the Planning Act 2008, regardless of the interest, scale and complexity of application projects and the reforms seek to take a more tailored approach to ensure examinations are proportionate.
The following changes are proposed:
- Removing the prohibition on an Inspector who has given section 51 advice during the pre-application stage from then being appointed to the Examining Authority.
- Requiring relevant representations to include more detail (rather than relying on written representations) to enable the Examining Authority to understand key issues earlier on and optimise examination preparation. These should reflect pre-application discussions with applicants and PINS.
- Introducing greater discretion for the Examining Authority to set proportionate and flexible examination deadlines, particularly for the receipt of written material but removing minimum time periods and allowing Examining Authorities to use their discretion to set all deadlines.
- Enabling the use of digital tools for notifications and examination materials meaning materials will shared digitally only and submission of pure data will be introduced.
- Updating guidance to provide greater certainty on the information requirements for the application and examination stages including updated guidance on drafting of the DCO.
Establishing a fast-track route to consent
A new fast track route is proposed to enable certain projects to benefit from expedited examination and progress from acceptance to decision within a non-statutory target of 12 months. The fast-track will include the possibility of having a shorter statutory timeframe for examination, capped at 4 months (rather than 6 months on the standard route).
PINS will determine whether an application is suitable for the fast-track route providing that confirmation at acceptance. PINS will also have the ability to extend an examination should particular factors come into play, such as a change to the application.
Guidance will be updated to support the new fast-track route. Applicants wishing to put their projects on the fast-track route will need to:
- Participate in the top-tier 'enhanced' pre-application support service from PINS as detailed above.
- Demonstrate the satisfaction of defined quality standards set by the Secretary of State. The standards will consider elements such as the complexity of the principal areas of disagreement between the applicant and interested parties. Further details are included in Box 4 of the Consultation. Applicants will be asked to prepare additional documents to demonstrate satisfaction of the criteria.
Reviewing the process for making post-consent changes to DCOs
The consultation acknowledges that applications for non-material changes to DCOs post-consent are taking from 2 to 16 months to determine, even after considerable time is spent determining the materiality of the proposed changes.
In view of this, a review of the process for seeking post-consent changes to DCOs is proposed to:
- Standardise and improve the advice given to applicants about the likely materiality of a change to better direct applications through the material or non-material change process and avoid subsequent delays; and
- Introduce a statutory timeframe for decision-making on non-material change applications.
Resourcing PINS and updating existing fees
With the increasing financial and resource pressures being faced by PINS due to the number and complexity of projects entering the NSIP system and the burden of implementing planning reform, the consultation anticipates between 40 and 50 new members of staff will be required at PINS and soon.
To address resourcing issues, a new approach is suggested to enable PINS to recover more of its costs in providing statutory services (less than 70% of their costs are currently recovered) by:
- Introducing charges for applicants using PINS' enhanced pre-application services. PINS estimate the services could cost between £50,000 to £200,00 per application for a 12 month period and would vary depending on the service to be provided.
- Updating the fees payable in relation to other parts of the process and introducing new fees. For example, fees may be introduced for late submissions of an application or additional fees may be payable where an extended pre-examination period is required.
Although the new and updated charges could double application costs the consultation suggests that the charges will remain a small proportion of applicants' total costs (on the basis that current Planning Inspectorate fees only account for 0.1%-0.3% of overall project costs).
Strengthening the performance of statutory consultees
The consultation identifies that effective engagement with statutory consultees is currently hindered by challenges around resourcing and obtaining the necessary project information to provide informed advice early on in the development process.
To strengthen the engagement of statutory consultees, the consultation proposes to:
- Work across government bodies to improve service delivery. This will involve boosting funding for relevant bodies and the development of a set of key performance indicators (KPIs) that specific statutory consultees will report against. Further detail on the KPIs proposed is included in section 7.2.1.
- Enable key statutory consultees to charge applicants for the cost of planning services to address current resource constraints. These key bodies will include the Environment Agency, Natural England, National Highways and others. The services which these bodies can charge for will include statutory and non-statutory engagement across the full consenting process. For example, it would include Examination costs including attendance at hearings. Charges will either be agreed on a case by case basis with applicants through planning performance agreements or using a fixed charging schedule which will be developed by each consultee.
- New guidance will be published on the cost recovery system for statutory consultees and the expectations around that.
Improving engagement with local authorities and communities
The consultation is seeking to review the way in which applicants consult with local authorities and communities and take account of local issues and concerns to improve engagement. The consultation proposes to achieve this through:
- Launchingan additional round of fundingthrough the Innovation and Capacity Fund to assist local authorities to address resourcing or develop innovative solutions to consenting issues.
- Encouraging greater use of planning performance agreements (PPAs) by developing guidance on principles of their use. The principles will include an expectation that authorities may fully recover their costs of engaging with the consenting process in return for agreed levels of service and without prejudice engagement.
- Improving local community engagement through revised prescriptive pre-application consultation guidance and an 'adequacy of consultation' milestone. Guidance will propose the use of independent community liaison chair or forums to improve engagement. The milestone and appropriate support will be embedded in PINS' pre-application services (see above).
Noted in the consultation was another consultation, that around community benefits for overhead lines which took place earlier this year. Although it is not the intention of this consultation to consider community benefit in relation to wider NSIPs, the consultation does recognise that any further guidance produced on community benefit would sit separately from the consenting process and would not form part of the consideration of merits.
Building the skills needed to support infrastructure delivery
The consultation highlights several of the reforms set out in the NSIP Reform Action Plan which are now in motion to meet the challenges of ensuring capacity and capability in the consenting system, including:
- In relation to PINS and government bodies, there will be ongoing workforce planning and recruitment.
- In relation to local authorities, there will be support for upskilling through the development of the government's Planning Skills Delivery Fund and specific support to authorities that are new to the NSIP consenting process including sharing 'lessons learned'.
The consultation will be open for responses until 11:59pm on 19 September 2023.
Looking ahead, the following will be rolled out:
- From September 2023: several projects from different sectors will being piloting the fast-track scheme.
- By Spring 2024: the government will publish a response to the consultation and aim to have published the key changes to regulation and guidance, including to enable PINS and statutory consultees to start recovering costs from applicants.
- From 2025: PINS will have established a digital and agile approach, Environment Outcome Reports will be introduced, and updated National Policy Statements will be published and regularly reviewed.
Co-authored by solicitor Olivia Heininger and soon to be qualified solicitor Jonathan Catt.
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.