UK Major Infrastructure Projects – summer consultation on reforms to the NSIP consenting process

Rebooting the NSIP process

Since the first NSIP applications were considered in 2011, the demands on the system have changed and the speed with which decisions are made has slowed. With this in mind, the government’s NSIP Action Plan (February 2023 – see our Engage bulletin here) set out its aspirations for a rebooted NSIP consenting process.

Consultation focus

The Action Plan identified five key areas for reform, from changes to the way in which National Policy Statements (NPS) function, to the introduction of Environmental Outcomes Reports (EORs). The current consultation focuses on three of those areas:

1. Operational reform to support a faster consenting process – with an emphasis on delivering proportionate examinations for all projects, strengthening pre-application advice, and the introduction for some schemes of a new “fast track” consenting timeframe.
2. Recognising the role of local authorities and strengthening community engagement with NSIPs – with greater support for and measures to embed community input and benefits earlier on in the process than at present.
3. Improving system-wide capacity and capability – including through developing skills and training and extending cost-recovery by the Planning Inspectorate (PINS) and key statutory consultees to better support the preparation and examination of NSIP applications and build resilience into the system.

The government has said that work on NPSs and EORs continues across government and that announcements will be made in due course.

Key proposals

As you’d imagine, the consultation document is lengthy and detailed, so we’ve summarised below some of the stand-out proposals it contains.

1. The introduction of a “fast track” consenting regime

The Levelling Up and Regeneration Bill contains provisions to amend the Planning Act 2008 to allow the Secretary of State to set shorter examination deadlines. To facilitate the exercise of this power the consultation proposes the introduction of a framework to govern how projects can apply for a shorter examination timeframe and the standards it must meet to be eligible.

How fast will the fast track be? Projects accepted to the fast track will benefit from a statutory pre-examination timeframe of three months, an abridged maximum examination period of four months (down from the standard six) and recommendation and decision periods each of two and a half months (currently three). In total, the process seeks to enable decisions within 12 months of acceptance.

What projects will be eligible and at what point will that be decided? Applicants seeking to enter the fast track route will need to demonstrate that their scheme meets a quality standard.  The main test for this is that, in PINS’ view, the principal areas of disagreement between parties have been clearly articulated by the applicant at the end of the pre-application stage, and are limited in number and scope such that the application is capable of being examined and/or disagreements being resolved in a maximum four month period. In order to facilitate this workstream, fast track aspirants will need to sign up to – and pay for – PINS’ Tier 3 pre-application process (as to which see point “2” below).

A provisional decision as to whether an application is eligible for the fast track will be made on acceptance. The examination timescales could be extended if changes to the application are accepted or issues arise from relevant representations – so a decision in 12 months isn’t guaranteed.

2. A new (chargeable) approach to PINS’ pre-application services

PINS is developing a new (compulsory) chargeable approach to its pre-application services, expected to come online from April 2024. It will offer three levels of its pre-application service for applicants:

• Tier 1 – a basic pre-application service focusing on statutory minimum procedural advice for low complexity, uncontroversial projects with no or limited compulsory acquisition and/or where the potential examination issues are considered frequently by Examining Authorities;
• Tier 2 – a standard service offering PINS’ advice on merits in addition to procedural advice and support with the preparation of documentation; and
• Tier 3 – a new enhanced service intended to support applicants for complex projects in identifying and tackling complicated issues and those seeking a shorter examination through the new fast track process. The Tier 3 service will offer a draft documents review service including specialist and inspector resourcing where appropriate.

Applicants will be able to select which support package is most suitable, with each package running for a fixed period – potentially 12 months – with the option to switch service levels at the end of that period. 

All applicants who wish to use PINS’ pre-application services will be required to subscribe to one of the options – which are expected to cost between £50,000 and £200,000 per application per 12 month period, and which represent full cost recovery for PINS. This is a change in tack from the existing fee structures under which PINS generally recovers under 70% of its statutory process costs.

3. Improving the process for making non-material changes

One of the key selling points of the NSIP regime is its (general) adherence to statutory timeframes, which provides certainty to applicants and interested parties alike. There are no such statutory timescales for the consideration and determination of applications for non-material changes to development consent orders. To bring about greater certainty – and facilitate non-material changes to enable technological improvements or cost and time savings – the consultation proposes the introduction of regulations to implement a statutory timeframe for the determination of non-material change applications. Views are sought on a range of timeframes between six and 12 weeks.

Alongside this are proposals to clarify the question of materiality. While there is guidance on the procedure for making changes to development consent orders after the grant of consent, there is relatively little support for applicants on questions of the materiality of changes. Well advised applicants will seek discussions on the materiality of a proposed change with the relevant consenting department, but this isn’t a mandatory step. The consultation proposes improvements to the advice given to applicants about the likely materiality of changes so that such advice can be obtained as early as possible in the process.

These changes – and the others proposed in the consultation – will, once implemented, be supported by new web-based guidance akin to the Planning Practice Guidance under the 1990 Act planning regime. With hearings already being largely electronic, an easily navigable suite of guidance is to be welcomed.

Revolution or evolution?

Although we’ve only scratched the surface of the proposed reforms, it’s fair to say that, while they are comprehensive, the changes are evolutionary as opposed to a wholesale replacement of the existing regime. That reflects a system which largely works well but which, with some sensible refinement, can certainly be improved and accelerated.

Will the fast track system make a meaningful difference? It certainly has the potential to reduce the “headline” timescales for a significant number of applications, but it will have genuine utility only if meeting the quality standard doesn’t result in a significant amount of work to be front-loaded and carried out before submission.

The improvements proposed will, by and large, be funded by applicants, which follows the direction of travel of the planning system more widely – but will raise some eyebrows nonetheless. That said, if the outlay on resourcing results in a better-resourced and more efficient consenting system, it’s likely to be seen as a price worth paying.

Next steps

If you’ve made it this far, there’s a pretty high chance that the consultation document has made it to your holiday reading list. The consultation closes not long after the schools return – at 23.59 on 19 September, to be precise – leaving just seven weeks remaining in which to respond.

And what of the ambitious recommendations contained in the National Infrastructure Commission’s review of the NSIP system and NPSs (covered in our April 2023 Engage bulletin here)? Government has confirmed that it is considering those proposals separately to the current consultation and will respond “in due course” – which we suspect will be within the next six to 12 months.

In the meantime, keep an eye out for further news and analysis from us as the government moves forward with its reforms.

Sticking with consultations – click here to read Robert Gowing’s run down of the other consultations – past, present and future – being conducted by the Department for Levelling Up, Housing and Communities.

Authored by David Wood.