In 2013 the Government began its review of the Nationally Significant Infrastructure Project (NSIP) regime, five years after the regime was implemented through the 2008 Act, by issuing a discussion document for consultation (endnote 1).
A number of changes had 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. All this has been targeted to improve, refine and speed up the process.
The Government's response to the consultation on the discussion document (endnote 2) 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 are reflected in the Infrastructure Bill – see our briefing here) as well as several measures that would not necessitate amendments to primary legislation.
The technical consultation document seeks views on two of those measures heralded in the April 2014 response, being amendments to regulations for making changes to Development Consent Orders (DCO) and the expansion of the regime’s "one stop shop" capability.
Making Changes to Development Consent Orders
The process for changing a DCO following the grant of consent is currently set out in the Planning Act 2008 (the 2008 Act) and in the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011 (the 2011 Regulations). Respondents to the Government's discussion document were clear that there was a need for guidance on what constitutes a non-material change as opposed to a material change; and many argued that the statutory timescales and consultation requirements should be proportionate to the changes being proposed.
In response, the technical consultation document proposes the following changes to the 2011 Regulations:
- The responsibility for publicising the application for non-material changes and consultation to be placed on the applicant rather than the Secretary of State, in line with the rest of the 2008 Act.
- Greater flexibility in the prescribed scale of maps for offshore schemes to avoid pages of plans showing empty sea (mirroring proposed changes to regulations in respect of new DCO applications).
- Amending the consultation provisions with regard to material changes, so that instead of the current requirement to consult with each person consulted on the original DCO application, the applicant would be required to consult those persons who could be directly affected by the change proposed if consent for the change was given.
- Removal of the requirements in cases of material changes to prepare a statement of community consultation and to formally publicise proposed applications under the 2011 Regulations in advance of them being made.
- Providing for a new regulation that allows the Secretary of State not to hold an examination into an application for a material change if he considers that one is not necessary (e.g. because a decision could be reached on the sole basis of relevant representations received).
- Amending the timescales involved so that the examination of a material change has a maximum period of four months, with two months for the Examining Authority to prepare its report and recommendation and a further two months for the Secretary of State to reach a decision.
To pull this all together, the technical consultation document proposes issuing procedural guidance on the operation of the process for making non-material and material changes to DCOs, once the necessary amendments to the 2011 Regulations have been made.
This guidance is likely to cover the assessment of whether changes are material or not. Indeed, one of the questions posed in the consultation document is whether three characteristics in particular are suitable for assessing whether a change to a DCO is more likely to be non-material. These are: an update to the Environmental Statement to take account of likely significant effects on the environment; a need for a Habitats Regulations Assessment or a new or additional licence in respect of European Protected Species; and compulsory acquisition of any land that was not authorised through the existing DCO.
These provisions are certainly welcome and once implemented they should give developers more confidence in the process for making amendments to DCOs.
Streamlining the consenting process
The NSIP regime aims to provide a "one stop shop" for obtaining consents, removing the need for developers to obtain multiple consents from multiple bodies. However, under section 150 of the 2008 Act some consents can only be included in the DCO subject to agreement from the body (e.g. Environment Agency, Natural England) who would normally be responsible for that consent.
The list of consents under section 150 has already dropped to 23 following removal of a number of consents last year and, as part of the 2013 consultation, the Government sought views on further streamlining this list.
Responses to the Government's discussion document were positive overall and the technical consultation goes on to propose the removal of ten further non-planning consents, which would mean that agreement would no longer need to be sought from the relevant body for those consents to be included in the DCO. These are in the areas of water abstraction and impoundment, flood defence, land drainage and European Protected Species.
The advantages of including further consents in the DCO is greater certainty, as developers do not have to apply for subsequent consents following the grant of the DCO.
However, in order to include these consents in the DCO there will be a need for even greater front-loading of the process in the pre-application phase, particularly as a number of the consents rely on more details being provided than the developer usually has available at that time. The consultation document highlights the need for developers to ensure they have undertaken the necessary preparatory work (including if necessary obtaining any prior permissions or licences required to then undertake the necessary technical work and tests), prior to submitting the DCO application.
Furthermore, the technical consultation notes that the Examining Authority would be expected to seek expert advice and take into account all relevant information, assessment and advice in its consideration of the DCO, to ensure all relevant conditions and provisions had been included.
Monitoring, compliance and enforcement arrangements would be the responsibility of the relevant organisations and this would need to be set out in the DCO.
Again, the further streamlining of Section 150 consents is to be welcomed, although developers will need to bear in mind the likelihood for further more detailed work before the application is submitted to ensure a robust case for their inclusion in the DCO.