The Government’s NSIP Action Plan: Reform Area 2 – Operational reform to support a faster consenting process

What is the NSIP Action Plan?

On 23 February 2023, the Government published an Action Plan to reform the consenting process for Nationally Significant Infrastructure Projects (NSIPs), identifying five ‘reform areas’ that the Government considers will help to achieve its aims. Please see our previous blog post on NSIP Action Plan: Reform Area 1 for more detail on the context and aims of the Action Plan.

The five reform areas are set out below:

1. Setting a clear strategic direction for infrastructure planning;
2. Operational reform to support a faster consenting process;
3. Realising better outcomes for the natural environment;
4. Recognising the role of local communities and strengthening engagement; and
5. System capability – building a more diverse and resilient resourcing model.

This blog will consider the context and aims of Reform Area 2: Operational reform to support a faster consenting process.

The current consenting process

Applications for development consent for NSIPs are currently dealt with by the Planning Inspectorate (PINS) in the first instance. Infrastructure developers must apply to PINS and each application is scrutinised by an Examining Authority (ExA), in panels of up to five individuals. After the examination has been completed, an ExA makes a recommendation on the application to the relevant Secretary of State, who then decides whether to grant consent.

The DCO process for NSIPs was intended to “front-load” much of the engagement and project-development to the pre-application phase. However, responses to the Government’s call to evidence indicated that this is not always happening. The Action Plan describes the examination process as “increasingly difficult to navigate”. Key issues are said to be the increasing amounts of information being requested by ExA as well as changes being made to applications during the examination itself. The Action Plan argues that this is leading to higher levels of cost and delay.

Proposed solutions and timescales

The Government proposes to incentivise earlier engagement between infrastructure developers and other interested parties (e.g. affected communities, local authorities and statutory bodies) to make NSIP applications a faster, more efficient process. To do so, it will:

• Establish an enhanced PINS pre-application service, paid for by the developer. Options for how this will be established and operate will be subject to detailed development by PINS in 2023
• Establish a fast-track consenting timeframe for projects that meet defined quality standards, supported by primary legislation, with a consultation on proposals for draft quality standards planned for Spring 2023
• Introduce a new application service portal, pilots of which have already been held; it is expected to extend to all applications during 2023

To support the above aims, the Government also proposes to:

• Simplify engagement with statutory consultees and ensure that “the right consultees are proportionately involved with the right projects at the right time”
• Review the examination procedure rules and increase digitisation of the examination process
• Review the process for material and non-material change applications and digitise the certification of documents to speed up implementation

Our thoughts

The introduction to the Action Plan sets out some high-level statistics to illustrate how NSIPs are taking longer to reach decision and how there has been an increase in the volume of documentation being created, which, in turn, also slows down decision making.

Less clear, however, is quite how the reforms detailed in the Action Plan are going to tackle these issues. Increased pre-application engagement and advice could lead to more streamlined applications, but only if the correct stakeholders are engaged at the correct stage. If an untailored approach is used it could, in fact, lead to greater volumes of paperwork and increased delay with little benefit. Similarly, increased digitalisation could be of great benefit, but only if the technology works well and applicants and stakeholders have adequate opportunity to test and get used to the systems.

With that in mind, developers and stakeholders alike will want to keep a close eye on the Examinations for the ‘A66 Northern Trans-Pennine Project’ DCO, which is being treated as a case study for some of the proposed reforms including use of new style documents such as Principal Areas of Disagreement Summary Statements, and the ‘Drax Bioenergy with Carbon Capture Storage Project’ DCO which is trialling the new format website to display Relevant Representations.

This is the second in a series of blogs looking at the five reform areas identified by the Action Plan. See our previous blog on NSIP Action Plan: Reform Area 1 and keep an eye on our Linkedin or Twitter for future posts.