Project Nutcracker: Eight Ideas Adopted By Government. What Next?

I've been writing about planning reform for over two years now. It's been a surprise to see how widely my articles have been read and how many of my ideas picked up, amplified by readers, and adopted by Government. A big thank you to everyone, including to my local MP, Planning Minister Matthew Pennycook, and his incredibly hard-working team at MHCLG (Alicia Ford, Suzie Wilson, Anna Payne and their colleagues) who made changes to the Planning and Infrastructure Bill late in the day to accommodate many of these proposals.

So here, in summary, are the eight Nutcracker ideas which have now made it into law or policy, with a reminder of why they'll make a difference.

Calling out ideas with less mileage is also an important part of the Nutcracker mission. I say a few words about the development consent order (DCO) "fast-track" and reform of judicial review in this context.

Finally, some thoughts on what next. 

The eight Nutcracker ideas now adopted

1. Removing the legal duty to consult during the pre-application phase of a DCO application

Of all the changes in the Planning and Infrastructure Act 2025, the infrastructure developers I know are most grateful for this one, and for the removal of the requirement for a preliminary environmental information report (PEIR) (see point 2 below). Unlike applications for planning permission, Transport and Works Act Orders, or Hybrid Bills (for schemes like HS2), the Planning Act 2008 made it a legal requirement to carry out pre-application consultation, rather than just best practice. I explained the unintended consequences of this back in October 2023 [Project Nutcracker: Our latest thinking about speeding up consenting]. Essentially, regardless of any guidance, this legal duty would always drive excessive consultation at the expense of meaningful engagement. My Project Nutcracker: Tidying Up Not Speeding Up article in February 2025 reiterated these concerns, shortly before the Bill was published. 

Two months later, Minister Pennycook announced a change to the Bill: the deletion of all pre-application duties from the Planning Act, save for those relating to notices: [here]. He stated that the change could reduce pre-application timelines by up to 12 months, and save over £1 billion across the pipeline of projects over this Parliament.

MHCLG went further, and is also removing the legal duty to consult at the pre-application stage of Town and Country Planning Act (TCPA) applications for onshore wind farms. This makes sense. This legal duty doesn't exist for any other type of TCPA application. It was added as part of a suite of measures brought in by the Conservative Government many years ago to effectively ban onshore wind.

We await statutory guidance from MHCLG on what sort of engagement they recommend in the DCO pre-application period in lieu of the legal duties to consult. No other consenting regime has such statutory guidance. However, provided the guidance is crystal clear in explaining the benefits of thoughtful engagement, without mandating it, the win from a pro-growth perspective will be significant. There needs to be related clarity provided in relation to the "acceptance test" (see point 3 below).

2. Removing the legal duty to create a preliminary environmental report for a DCO application

Linked to the above, the Planning and Infrastructure Act 2025 removes the duty on developers to produce a PEIR, something again that I called for in my October 2023 and February 2025 articles. This legal duty is provided for in the Environmental Impact Assessment Regulations that apply to DCO applications. It is not, however, anything required by the EU's EIA Directive. It was invented to support the (novel) concept of mandatory pre-application consultation, which was a feature of the DCO process in the Planning Act 2008. 

PEIRs have come to be lengthy draft environmental impact assessments (EIAs). This is largely because developers realised long ago that it would be even more trouble to produce two versions of the same information in very different formats, and also because they were scared of being accused of withholding information at the pre-application stage if they did something that was lighter touch. Delays are caused not just by the drafting of these PEIRs, but by developers awaiting the outcome of the surveys needed to create them. Consultant teams inevitably spend valuable time working on the production of these PEIRs, at a time when it's too early to do so. The result is delay and unnecessary cost.

Their time would be better spent at the pre-application stage providing targeted information to specific bodies with an interest in a particular topic, and creating a more user-friendly analysis of impacts for the public and landowners. This is how it works for all other types of development application, and will now be how it works for DCOs too, provided there are no surprises in the MHCLG pre-application guidance when published.

3. Expanding and simplifying rights of access for surveys under section 53

In my October 2023 article and again in my February 2025 article, I asked to make it easier for would-be DCO applicants to access land to carry out surveys (for EIA and other purposes). Surveys will often be needed on land held by hostile landowners – those whose land may ultimately need to be compulsorily acquired for a project. Understandably, such landowners are often not keen to let a would-be developer onto their land to carry out surveys, yet these surveys may be essential for a legally compliant EIA. 

The Planning Act 2008's section 53 application process to gain access was burdensome for both developers and the Planning Inspectorate (PINS). It required an application and justification to be made that could often take a year. For this reason, many developers started to use powers under another Act. Section 172 of the Housing and Planning Act allows access on 14 days' notice, but arguably does not benefit all types of potential DCO applicants (I will spare you the case law on why). 

The Planning and Infrastructure Act 2025 changes section 53 of the Planning Act 2008 to allow access to all would-be DCO applicants on 14 days' notice. No application to PINS is required, and there is no restriction on what sort of developers can benefit. This will be even more important as the categories of project applying for DCOs expands to include projects like data centres and other "business and commercial" applications who decide to opt into the regime but wouldn't benefit from section 172 rights or the old version of section 53.

4. Creating the ability to opt-out of the DCO regime 

The regime created by the Planning Act 2008 for consenting "nationally significant infrastructure projects" (NSIP) can be very useful compared with the alternative (usually obtaining planning permission from the local authority). A DCO can wrap in powers of compulsory purchase (which planning permissions cannot), and avoid refusals based on local politics (as the decision is made by the relevant Secretary of State not the local authority). For linear schemes, passing through multiple land ownerships and multiple local authority jurisdictions it can be particularly valuable. 

However, there are many cases where schemes are caught by the mandatory thresholds of the DCO regime but it would be quicker and cheaper for them to be consented locally. This is particularly the case where the local authority is supportive of the scheme and no powers of compulsory purchase are required. 

As I explained in my October 2024 article [Project Nutcracker: Make NSIP Thresholds Flexible if You Want Growth], the best approach is to give developers the freedom to choose which consenting route to use on a case-by-case basis. The Planning and Infrastructure Act 2025 now does this. Developers may ask the Secretary of State to allow them to opt-out of the DCO regime (as well as the existing ability to request to opt into it). 

The Planning and Infrastructure Act 2025's removal of the onerous pre-application legal duties to produce a PEIR (point 2 above) and to carry out legally prescribed consultation (point 1 above) is likely to make DCOs a more attractive option than they were previously, but opting out of the DCO regime is still likely to be an appealing option for some projects. I know a number of solar and wind developers now weighing up their options. It is great that they have that freedom.

5. Improvements to the acceptance test for DCO applications

The Planning and Infrastructure Act 2025 leaves untouched the test PINS must apply when deciding whether to "accept" an application for examination, save that compliance with the onerous pre-application duties will thankfully no longer apply (since they have now been deleted from the statute book – see points 1 and 2 above).

This is good news for two reasons. Firstly, for reasons I explained in my February 2025 article (see "PROPOSAL 1" in that article), the fear of PINS ruling that applicants had not consulted "adequately" was one of the drivers of the ever-lengthening pre-application phase. Secondly, the Bill initially proposed a new acceptance test ("suitable to proceed to examination" instead of "satisfactory standard"). This was a legislative invitation to PINS to give the applicant a list of changes that (if actioned) would enable acceptance, but only after a 28-day delay. Thankfully, after concerns were raised that this new test invited far too much discretion on PINS" part to reject or delay acceptance, the Bill was revised to retain the test of a "satisfactory standard" and remove the 28-day delay process.

Now all we need is for the upcoming MHCLG guidance to make clear the limited grounds on which PINS should deem applications to fail the acceptance test. I am happy for PINS to come up with a list of changes or additions they would like to see to application documents before examination starts, or before the application is publicised. But unless the application documentation is genuinely woeful this shouldn't prevent "acceptance". We need the clock to start ticking towards examination as soon as possible, in parallel to minor corrections being made. To be fair to PINS this is generally the approach they adopt, but there is a lot of inconsistency between PINS officers. I hope this is ironed out by guidance.

6. Call-in of "minded to refuse" resolutions by councils on housing applications over 150 units and large commercial developments

I don't normally write about improvements that could be made to the consenting of projects under the TCPA regime, but it always seemed strange to me that the duty placed on councils to "refer" applications to central Government for potential "call-in" only applied to applications that a council was minded to grant. It was therefore a development-sceptic power, aimed at letting central Government double-check that consent should be granted. In a pro-growth world what we needed, surely, was the opposite – the ability to stop councils refusing consents for applications that Government believes the country urgently needs. 

I suggested a way to do this in my March 2025 article [Project Nutcracker: A tool for Government to tackle politically motivated council refusals]. I explained that this would need to be twinned with the ability to make such decisions without necessarily holding an inquiry. 

The Government has since announced its intention to do this for housing applications.

On 18 November 2025, Steve Reed announced [here] that: "Given the scale of the housing crisis, and the imperative of building the homes we need, I want to use [call-in] powers in a more focused and active way. I will require local authorities to notify me where they intend to refuse an application for 150 homes or more – providing me with the opportunity to decide whether to take it over. This will be enforced through a new Consultation Direction and a change to legislation, and supported by a revised call-in and recovery policy. The Government will also commence new provisions that allow called-in applications to be dealt with faster through written representations, rather than requiring an inquiry, where requested by the main parties." 

Speaking in the House of Commons on 23 March 2026, Matthew Pennycook confirmed that measures allowing ministers to decide whether to intervene will be introduced via revisions to the National Planning Policy Framework. He confirmed that the proposals will be extended to commercial developments of more than 15,000 sq m (161,500 sq ft). I assume that datacentres are part of the driver here.

It will be important that use of the written representations process for such call-ins is both swift and quickly demonstrates a high rate of approval. The capacity of both PINS and the Secretary of State's office to deal with call-in applications will be limited, but there should be a virtuous knock-on effect if housing and commercial applications are swiftly granted where they are called-in. Developers tell me that the risk of call-in should encourage more councils to deal more swiftly and positively with housing and commercial applications, because hammering out a deal with a developer locally may be preferable to risking the application being called-in and granted on terms less to a council's liking by the Secretary of State.

7. Bat sheds, kittiwake hotels and fish discos – guidance to avoid nonsensical decisions

Some of my most widely read and referenced ideas this year relate to the Habitat Regulations. This regime has been a favourite topic of think-tankers and the media: Bat tunnels and fish discos make headline grabbing stories, and it is right to highlight them. The challenge though for commentators on this topic is that: (i) it's a particularly complex area of law, where case law, international law and conventions have a significant bearing; and (ii) a lot of the issues arise from custom and practice of regulators rather than the law itself. To come up with workable fixes, you need this legal and practical understanding. My articles tried to contribute this to the debate. 

I explained why I was sceptical about the broad-brush solutions being floated by some commentators back in 2024: "Bat shed crazy – Can Starmer really bulldoze the environmental blockers to growth?". When Government brought out its Working Paper on "Nature Recovery Funds" (ahead of publication of the Bill) I explained why this new regime wouldn’t assist infrastructure projects in the same way it might address "collective" problems, like the housing sector's nutrient pollution issue: "Wishful Thinking on Strategic Compensation". In a further article, I suggested changes to law and guidance to deal with over-precaution, de minimis impacts, insistence on like-for-like compensation, and requests for re-assessment when conditions are discharged: "Avoiding More Kittiwake Hotels". After speaking to a number of ecologists, many people in the offshore wind sector and a leading barrister in the field, I developed my thinking on these issues further. This resulted in my article "The Secret Ecologists Speak", which refined my legislative requests, but was more noted for the case studies showing the extent to which the duty to prove the negative and the hollowing out of scientific expertise within regulators is driving some crazy outcomes. 

Much of the above was referenced in Britain Remade's Nuclear Playbook, and my three case study examples (although non-nuclear) featured in the Nuclear Taskforce Review and were much cited by the press when the report was published.

An amendment to the Planning and Infrastructure Bill was proposed by cross-party Peers (Lord Hunt, Lord Ravensdale and Lord Roborough) based on the suggestions in my articles, which were much referenced in the debate. It wasn't a surprise that the amendment was resisted. Introducing something like this at the Lords stage of a Bill is extremely challenging. But in withdrawing the amendment, Lord Ravensdale (a senior figure in Peers for the Planet, who is also a nuclear engineer) secured an official commitment from Baroness Taylor (MHCLG's Under-Secretary of State for Housing and Local Government) to address the issues through guidance. The letter is helpful in acknowledging specifically that the new guidance will make clear to regulators: (i) the need for "scientific evidence, not merely [identification of] hypothetical" risks; (ii) "that small effects which do not have any prospect of risking harm to a protected site can, and should, be screened out" (the de minimis issue); and (iii) that "there is already flexibility in the law in considering appropriate compensatory measures" (my complaint that like-for-like compensation is in practice being required by regulators, while not required by law). The letter also confirms that: "Should the updated guidance not be sufficient to provide clarity, the government may consider whether legislative changes are required." 

My great thanks to all three Peers for their work on this issue, and in particular to Lord Ravensdale for his drive in initiating this amendment and his perseverance right to the end in getting this commitment.

The Government's Response to the Nuclear Taskforce's Review (page 27 – Recommendation 11), has essentially re-affirmed the above commitment made by Baroness Taylor: Recommendation 11 (a), (b), (c) and (e) of the Nuclear Taskforce Review (see page 70) had called for legislation, per my articles, which would: remove the duty to prove a negative; spell out that like-for-like compensation is not required; be clear that de minimis effects do not constitute an "adverse effect on integrity"; and provide that mitigation measures can be dealt with at the screening stage (reversing the People over Wind case). Recommendation (d) is a version of my request to address CG Fry (so that discharges of conditions don't require a re-assessment) but enlarged. 

Guidance, if very specific and addressed more to regulators than applicants, could be highly effective. But: (i) will it be? and (ii) guidance cannot reverse case law, so there is a limit on the extent to which it can address behaviours driven by CG Fry and People over Wind. I note, however, that the Government Response to Recommendation 11 states that they will legislate "at the earliest opportunity" to allow consideration of mitigation measures at "an early stage of the Habitats Regulations Assessment (HRA) process." I take this to mean the Government intends to legislate to reverse the People Over Wind case. That would be helpful for the reasons explained in my No More Kittiwake Hotels article (essentially, so that we avoid full assessment in cases where it should be obvious that mitigation will avoid any adverse effect). 

DEFRA is consulting on the proposed new guidance [here]. The consultation is open until 19 May. I will leave for another day, or to others, commentary on how the draft guidance measures up to what is needed.

In any event, whether law or guidance is brought in, it must be coupled with significant culture change within DEFRA bodies – greater scientific expertise, more command and control from within, and less of a sense that individual officers are a law-unto-themselves regardless of expertise or evidence. Dan Corry's review of DEFRA and various statements and letters from the Chancellor to regulators have emphasised the need for cultural change, but as we all know such change is hard.

8. Doing something about nuclear "regulatory justification"

I wrote about the absurdity of the "regulatory justification" process in A Hack for Ed Miliband if He Wants to Win the Global Race for SMRs. The substance of this article was thanks to small modular reactor ("SMR") developer, Last Energy, whose CEO I met at the previous Government's bizarre Nuclear Hackathon event (which I describe in the article). The response I got from the nuclear industry was overwhelming. Britain Remade reiterated my points in an article, and an unsuccessful attempt was made in the Lords to use the Planning and Infrastructure Bill to remove this bit of unnecessary red tape. 

However, there has been progress.

In responding to the Nuclear Taskforce's Recommendation 35 (page 104), the Government's Response (page 39) commits to working with Great British Energy – Nuclear "to submit a regulatory justification application to DEFRA within the next 6 months seeking a determination under Regulation 12 for all Light Water Reactors." That doesn't go quite as far as the Taskforce's request, or my article, but is a step forward.

Two ideas that Nutcracker predicted had little mileage

Some say "it's easy to be a critic", but when it comes to planning reform I disagree. It is a thankless job compared to generating bright ideas, in a world where everyone is desperate for silver bullets. However, it remains one of the most important inputs to the debate that those of us with some practical and legal know-how can offer. So much time is otherwise wasted by politicians and civil servants. 

There were two ideas I predicted over two years ago which fell into this category:

9. Limiting the hearing of judicial reviews

As frustrating as it is, there are fundamental reasons why trying to limit the number of judicial reviews heard by the courts is not going to work. I explained these reasons in a couple of articles published in May 2024 [Why Reforming Judicial Review is Such a Challenge] and November 2024 [No Silver Bullets Found by the Banner Review]. The Aarhus Convention has become a fixation for some commentators but is in many ways a bit of red herring. We could exit and still be left with much the same set of political issues and practical limitations, for reasons I may explain another time.

The Government has done what it can on judicial review. It has cut out the "on the papers" permission stage. It is preventing appeals to a higher court where all grounds are held to be "totally without merit", and it has announced targets for speeding up the processing of cases through the courts. We will still, however, see a lot of cases taking a long time to be go through the courts. The Nuclear Taskforce Review had some other suggestions (Recommendation 20), but I'm afraid I don't see these as offering an effective solution (again, a topic for another time if people are interested).

Our better option is to turn our attention to mitigating the impacts of judicial review, rather than trying to stop them. I was therefore pleased that the Chancellor announced in her Parliamentary speech on the Middle East on 24 March, that the Government is "developing options to back critical energy projects with indemnities if their planning consent is challenged, so that we do not waste a single moment in protecting our energy security, because energy security is national security." This expands one of the Nuclear Taskforce recommendations backed by Government in respect of nuclear projects (Recommendation 21).

Some people seem to find this idea shocking, but it really isn't.

During a judicial review, a consent remains live and capable of implementation unless and until quashed by the court (ie if the challenge is successful). Even then, the vast majority of applications are re-granted once sent back for re-determination. Developers with money behind them sometimes choose to implement on risk: the risk being that if they lose the legal challenge, and the consent is not re-granted, they have suffered a lot of abortive costs. Sizewell C, for example, has been subject to multiple legal challenges (one of which is still live), yet has ploughed on with significant works in parallel with these ongoing legal proceedings.

However, most developers won't be able to raise funds to implement their consent while a legal challenge is live. That is where Government could really help.

If the Government were to put in place indemnities to cover the risk of abortive costs in such cases, they would very rarely need to pay out under them. It would be fair to both sides: people could exercise their legal right to challenge consents, while we would avoid nationally important projects from being held up unnecessarily. Such indemnities therefore seem to me perfectly equitable, and good value for taxpayers.

While the court will grant injunctions to prevent the carrying out of genuinely irreversible works pending disposal of a judicial review (felling an ancient woodland, for example), it is generally reluctant to prevent a developer from using a consent simply because it is being challenged. The court sympathises with the impact this has on developers, given they will not be able to get a cross-undertaking in damages from the claimant for delays to programme. Many people don't realise this, which I suspect is the source of the consternation in some quarters. 

10. The DCO fast-track – zero take up, as predicted

Two years ago I predicted that no developer would opt to take up the "DCO fast-track" [The new DCO "fast-track" – not worth the bother I'm afraid]. To date there has indeed been zero take up of this enhanced pre-application service. It should have been obvious to everyone that developers weren't going to want to pay PINS and statutory consultees more money, spend (even more) time on the pre-application stage, and wash their dirty laundry in public, all in the hope that they might get a few months knocked off the examination and decision stage. 

If we want developers to value pre-application engagement with PINS, and use that service to shorten the overall consenting timeline, we need to rethink it radically. 

My fear is that PINS has not yet accepted that they are flogging a dead-horse with fast-track in anything like its current form. MHCLG's Consultation on Streamlining Infrastructure Planning (paras 128 to 143) appears to still be pondering why it had failed, and looking for ways to tweak it. There are fundamental reasons why engagement with PINS in the pre-application stage is not valued by developers in the way that engagement with local planning officers is for an ordinary planning applications. Understanding that distinction is essential to a solution, as I hope to explain in a future article.

What next for planning reform?

My hope is that Government minimises the amount of planning and environmental legislating it does from now on. None of the developers I speak to want more legislation, or big new policies. Both cause uncertainty and rarely fix the mundane problems that make up 95% of delays, refusals and excess costs – poor resourcing, lack of expertise, excessively precautionary mindsets, procrastination, lack of accountability, the comfort of following gold-plated precedent, and personal or organisational incentives which conflict with national goals. 

The law is a powerful tool but a blunt one when it comes to dealing with these issues in the context of consent regimes which are unavoidably based on case-specific information and judgement calls. Attempts to dream up legislative ways to avoid or minimise case-specific judgements have a habit of adding a new layer of bureaucracy, while retaining those problems in another guise. This is true of most of the big legislative ideas still out there. 

The Government has made some useful legislative changes, and announced positive intentions with regard to new guidance. The effectiveness of such changes will depend greatly on the detail set out in secondary legislation, and on the precise wording of guidance (which needs to be clear and specific enough to change behaviour, in a way Government guidance generally isn't). More importantly, reform requires cultural change within the key organisations operating the system. The job of "fixing" the planning regime should be seen more like improving a set of under-performing public services than plugging tax loopholes.

Planning and permitting law has changed very little for several decades, yet the processing of applications has become slower and more onerous. The good news is that this means that there is ample scope within the existing law to do things faster and better. The bad news is that cultural change is hard for Governments to effect, even within their "executive agencies" like PINS, nevermind within their quasi-independent regulators. I believe there are many within these bodies who recognise the need for change, however. I hope that by working with central Government, informed by developer perspectives, they will find the help they need.

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