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 .

Background

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”.

Conclusions

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.