Reforms to the NSIP Regime proposed in Government working paper

Alastair Lewis, Emyr Thomas, Emily Knowles and James Goldthorpe look over proposed changes to the planning system in the Planning and Infrastructure Bill.

The planning reform spotlight has been beaming down on the Nationally Significant Infrastructure (“NSIP”) regime in recent weeks, with a new Government policy paper Streamlining Infrastructure Planning published on 26 January.

The Government’s ambition to decide 150 Development Consent Order (“DCO”) applications during this parliament would represent a significant achievement which the working paper acknowledges will require a “faster, more certain and less costly NSIP regime”.

The proposed reforms would be brought forward in the forthcoming Planning and Infrastructure Bill (expected later this spring) and would have significant implications for developers, the Planning Inspectorate, government departments and local authorities. This note focusses on local authorities.

Regular updates to National Policy Statements

Under section 104 of the Planning Act 2008 (“2008 Act”), DCO applications are required to align with National Policy Statements (“NPSs”) unless specific exemptions apply.

However, despite their key importance to decision-making, updates to NPSs have been rare over the last decade and almost half of the designated NPSs are over five years old.

Suggesting that regular updates and greater flexibility for amendment could bring greater certainty to the regime, the working paper proposes two amendments to the 2008 Act:

• Requiring each NPS to be updated at least every five years to reflect government strategies, policy and priorities; and
• Introducing a new process for making ‘reflective amendments’: interim, smaller changes to address legislative change, policy-direction and court decisions.

The working paper says that ‘reflective amendments’ would not be subject to the existing level of requirements in relation to consultation, publicity and parliamentary scrutiny.

Consultation reforms

The working paper also proposes several reforms to the consultation process for DCO applications. These  seek to reduce the burdens of the pre-application stage for applicants and to narrow the scope of disagreement between participants at the examination stage.

The proposals include:

• Amending the 2008 Act to change the application acceptance requirements in a way which supports “outcome-based” judgements; and
• Introducing a new duty on all parties to identify and narrow any areas of disagreement during the pre-application stage.

The working paper is clear that the new duty would apply to applicants, statutory consultees and host local authorities.

The working paper also says that the Government would enable statutory costs recovery for host authorities which become subject to the duty.

The other proposed reforms include revisions to the requirements for applicants’ consultation reports and the scope of consultation required for associated land acquisition.

Based on our experience of assisting host authorities during the pre-application stage, we are interested to see how the Government’s policy development can reconcile the potentially conflicting objectives of narrowing down areas of disagreement early and making consultation “less burdensome”.

The working paper’s assertion that there is currently “little incentive for statutory consultees, local authorities and applicants to resolve issues proactively and early” is possibly uncharitable given the significant resource constraints faced by authorities, many of whom may be hosting numerous DCO applications. If the Government wants to see efficient and meaningful engagement pre-application, ensuring that local authorities are sufficiently resourced is imperative.

Post-consent issues

The working paper also identifies several reforms aimed at speeding up the delivery of NSIPs once consented.

These reforms include promoting the use of section 150 of the 2008 Act (which allows applicants to remove the need for further associated consents, subject to the agreement of the consenting body) and potentially extending, to other forms of licence, which is the approach taken to marine licences under section 149A, which enables them to be granted as part of a DCO.

The ambition to deliver on making the NSIP regime more of a “one-stop shop” will be welcomed by applicants.

Other post-consent proposals mooted in the working paper include:

1. Reforming the process through which corrections to a DCO can be made, potentially by allowing the Secretary of State to publish a draft order for the applicant to consider and suggest minor amendments; and
2. Removing the legislative distinction between “material” and “non-material” changes on post-consent changes to DCOs to provide greater flexibility to applicants after consent has been granted.

Creating a more flexible process

The final tranche of NSIP reforms proposed in the working paper relate to increasing the regime’s flexibility and changing the “uniform approach”, which it is argued may “limit the degree to which the Planning Inspectorate…can adapt the process to reflect the characteristics of a particular project”.

To address this “uniformity” problem, the policy paper proposes the introduction of a new power for the Secretary of State to judge, on a case-by-case basis, whether a project would be more suited to consent via an alternative regime.

It is suggested that the Secretary of State would prepare and publish criteria for making any such decisions and that the Government would seek to implement cost recovery powers for public bodies on would-be-NSIPs which end up being consented under other regimes.

Interestingly, the working paper also identifies several types of projects where the DCO process itself could be adjusted to account for the specific characteristics via a new “process modification power”. These projects include:

1. “Solar projects where planning, land and environmental issues are more limited” – for which it is suggested a streamlined approach could be adopted, with the Examining Authority able to combine written and relevant representations as part of an examination;
2. “A cluster of NSIPS in one region” – which could benefit from joint consultations or examinations; and
3. “Complex and lengthy linear projects” – where the DCO process could be modified to facilitate greater “strategic working between local authorities” and standardising the approach taken to different kinds of impact assessments.

The working paper makes clear that the proposed power would not amend statutory requirements relating to environmental regulation or compulsory acquisition.

In addition, the working paper proposes a new power for the Secretary of State to judge, on a case-by-case basis, whether a project would be more suited to be consented via an alternative regime”.

This could potentially allow (say) a solar project which would otherwise be subject to the DCO regime to be determined under the Town and Country Planning Act.

How we can help

Sharpe Pritchard’s planning and parliamentary team has extensive experience with all aspects of the NSIP regime, including pre-application matters, the DCO examination and a multitude of post-consent issues.

We have worked on some of the largest infrastructure projects in the country and developed an intricate understanding of the demands which NSIPs place on participants in the process, including host local authorities and how best to navigate them.

Please contact a member of our team if you would like to discuss any of the issues raised in this article.

The Government has asked for views on the options set out in its working paper and has included a list of consultation questions at paragraph 60.

Planning Reform Working Paper: Streamlining Infrastructure Planning – GOV.UK

Alastair Lewis and Emyr Thomas are Partners and Parliamentary Agents, Emily Knowles is Managing Associate and James Goldthorpe is Trainee Solicitor at Sharpe Pritchard LLP.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..