The Infrastructure Bill, published by Government on 6 June 2014, is heralded as being “designed to encourage investment in Britain’s infrastructure” and “cutting red tape for nationally significant infrastructure projects”1 .
Stated measures and benefits include improving the nationally significant infrastructure project (NSIP) regime by making a number of technical administrative improvements to the Planning Act 2008 (the 2008 Act). The Government is also seeking to reduce “red tape” with revised processes for changes to, and revocation of, development consent orders (DCO). It follows a review of how the 2008 Act has operated to date, and is one of a number of steps to be taken by government, identified in its response to that review2 .
Government discussion document
In 2013 the Government began its review of the NSIP regime, five years after the regime was implemented through the 2008 Act. A number of changes have already been implemented by both the Government (in the Localism Act 2011, Growth and Infrastructure Act 2013 and reviews of Guidance) and by the Planning Inspectorate (PINS). All this has been targeted to improve, refine and speed up the process, including the expansion of the regime’s “one stop shop” capability.
In early December 2013 a discussion document3 was launched to consult on potential changes to further improve the regime. Views were sought on:
- Improving the pre-application phase and ensuring consultation requirements are proportionate;
- Improving the pre-examination and examination phase;
- Making changes to DCOs after consent is granted;
- Streamlining consents; and
- Improving engagement with local communities, local authorities and statutory consultees.
Response to the consultation – and the Bill’s provisions
The Government’s response to the consultation was published in April 2014. The response set out a number of proposed reforms to be dealt with by way of amendments to the 2008 Act, which included the following:
- Number of inspectors
Under the 2008 Act, only one, three, four or five inspectors can be appointed. As the examination fee is largely determined by the number of inspectors handling the application, respondents to the consultation noted that allowing two inspectors could reduce the significant jump in fees currently faced by developers of small projects which are too big or too complex to be examined by a single inspector and currently passed onto a panel of three inspectors. The Government confirmed that it would bring forward amendments to the 2008 Act to enable the appointment of two inspectors – and this is included in the published Bill.
- Timing of inspectors’ appointment
The Government confirmed that it would seek to amend the 2008 Act to allow inspectors to be appointed once an application has been accepted, rather than delaying appointment until after the developer has publicised their application. This change will allow inspectors to be appointed up to two months earlier than is currently possible. It is also provided for in the Bill.
- Making changes to Development Consent Orders after consent is granted
It was clear from the responses to the discussion document that there needed to be more flexibility to make changes to DCOs post consent, as there was a perception that the current arrangements for making any changes was overly burdensome and bureaucratic.
The Government’s response notes that a consultation on the revised processes for making changes to DCOs will take place by August 2014 and a revised process for making changes to consents, revised Regulations and associated guidance covering the new process will be brought forward by April 2015.
Clause 19 of the Bill makes amendments to Schedule 6 of the 2008 Act, to cover consultation and publicity provisions; to include a safeguard to ensure that the process cannot be used to avoid the full application procedure for development consent where that should be required under the 2008 Act; and to allow regulations to permit the Secretary of State or an applicant “to exercise a discretion” (e.g. allowing the Secretary of State to dis-apply prescribed consultation requirements where this is considered appropriate4 ). No further detail is given and, as set out in the Government’s response, we can expect this to follow in due course by way of consultation in August 2014.
The Infrastructure Bill contains just three clauses relating specifically to the Planning Act 2008, being those identified in the Government’s response to the consultation on improving the NSIP regime as requiring legislative amendments. Whilst consistent with the response document, it is perhaps disappointing that the opportunity has not been taken to make more radical changes that would be beneficial to infrastructure schemes. This might include sensible reform to the compulsory acquisition regime or refinements to the DCO process for dealing with responsibility for or discharge of requirements.
Deemed discharge of planning conditions
A further provision which is of interest to the NSIP regime is that of deemed discharge of planning conditions where a decision has not been made within a specified period (clause 20). Although this is a proposed amendment to the Town and Country Planning Act 1990, drafting has previously been put forward by applicants for DCOs (e.g. on the Hinkley Point C Nuclear Power Station) for deemed approvals, only to be subsequently removed by the Secretary of State in his decision.
The Government intends to set out the details in secondary legislation and, with the tight timescales involved in the discharge of DCO requirements, promoters may want to follow the progress of this provision and any subsequent order closely to see if a case can be made for inclusion of deemed approvals in DCOs.
The Bill’s second reading, which is the general debate on all aspects of the Bill, will take place on 18 June 2014. We are unlikely to see any further amendments to the 2008 Act included in the Infrastructure Bill, confirmed by the Explanatory Note which states that the regime is “operating well and that major change is both unnecessary and undesirable”5 .
Other amendments to the NSIP regime
Aside from the proposals, the Government’s response to the consultation on improving the NSIP regime also refers to a number of measures that would not necessitate amendments to primary legislation, including the following:
- Pre-application prospectus
PINS has now published a pre-application prospectus which sets out the services it can provide during the pre-application phase6 .
- More help in preparing application documents and drafting DCOs
The Government confirmed that PINS will develop an area on its website which identifies good application documents and offers worked examples. So far just one document has been identified, which is the consultation report for the Triton Knoll Offshore Wind Farm.
- Further streamlining consents
The Government’s response confirmed that a consultation on bringing further consents into the DCO would be launched in “Spring 2014”.
The Bill is certainly not a radical re-think of NSIP legislation, largely because the 2008 Act has already been subjected to two rounds of legislative change but also because the regime does on the whole work well.
The changes included are welcome, in particular the increased flexibility to changes to consents post making. Coupled with the other improvements proposed in the April 2014 consultation response, they will undoubtedly improve the system.
Whilst the 2008 Act regime itself is reaching maturity and working well, what is now needed is a more radical look at the foundations over which the NSIP regime rests. Changes to compulsory acquisition and compensation law will make the regime function more effectively, whilst further change will soon be required by the emerging revisions from Europe on environmental assessment.
So, whilst the 2008 Act regime itself may be reaching equilibrium, further change is both likely and necessary.