Project Nutcracker: Tidying up not speeding up: Infrastructure planning reform loses sight of the exam question

The Government's rhetoric on reforming the planning system reaches ever-greater heights, but last week we got a glimpse of what they are actually proposing in terms of infrastructure planning, with the publication of MHCLG's Working Paper on Streamlining Infrastructure Planning.

Labour picks up the tinkering where the Conservatives left off

A huge amount of work has gone into this document, and there are few easy fixes. If there were then the previous Government would have found them. They too recognised the need to speed up infrastructure planning, and launched their "Project Speed" for this purpose several years ago. That project rather ran out of steam and morphed into an attempt to make the system "consistently smoother" but only "potentially faster"¹. It culminated in the "Fast-track" (which as I predicted [here] has had zero take-up), as well as lots more guidance being issued to developers, duties to prepare even more documents, duties to pay the Planning Inspectorate ("PINS") and statutory consultees for more involvement pre-application,  more explicit emphasis on the imperative to reach agreement on key issues before applications are made, and a new stage in the process (the "adequacy of consultation milestone") in an attempt to make developers less scared of PINS refusing even to validate their applications. It's early days but there is no sign of any speeding up so far, and in many ways the new measures have made the system yet more onerous.

I fear history is about to repeat itself.  

The exam question set by the Labour Government was surely: "How do we get infrastructure projects consented faster?" The Government's stated intention is to consent 150 infrastructure projects in this Parliament – a tripling of the number consented in the last Parliament. Yet the title of the Working Paper refers only to "streamlining" infrastructure planning. This reflects a drift away from a laser focus needed on speeding up. The measures proposed amount to a set of tinkerings with the same old problems, and a few hobby horses of contributors (we all have them).

Some proposals are more worthwhile than others, but the only one that will actually lead to increased speed (and reduced cost and resource) is the ability for developers to opt out from the NSIP regime altogether where they consider an alternative regime would be preferable. This flexibility is something I've called for previously [Make NSIP thresholds flexible if you want growth].   

The real target if you want speed should be pre-application consultation and a change to PINS' practices

The Working Paper notes that pre-application consultation has gone from an average 14 months (in 2013) to 27 months (in 2021). Possibly even longer by now? It certainly feels like it. The Paper puts forward proposals aimed at making such consultation more proportionate but, for reasons I explain below, they will be ineffective, just as the previous Government's attempts were.

The solution, if the Government is serious about tackling this problem is: (1) to make pre-application best practice but not a legal requirement (aligning it with all other regimes); and (2) to twin this with a clear Direction from the Secretary of State to Planning Inspectors about how to exercise their functions in a more focused, developer-friendly and pragmatic way (like the earlier days of the regime). 

The question is, how serious is the Government when it comes down to it? It was a question the Financial Times considered in this article that struck a chord with me: "Britain Should Stop Pretending it Wants More Economic Growth".  Janan Ganesh's argument is that while in theory Britain wants growth, in practice "almost everyone in politics has something they prioritise over it."  If the Government can't face a bit of criticism over cutting back the legal requirements to consult (while still retaining more formal duties to consult than under any other consent regime) that answers my question.

Analysis of the proposals from two perspectives

I set out below my thoughts on each of the proposals, from two perspectives: (1) will this measure speed up consenting? and (2) regardless of speed, do I think it's worthwhile? Lawyers have already had lots of interesting debates about the latter, but we need to stand back and consider the former.

PROPOSAL 1: "Amending the Act to change the application acceptance requirements in a way that supports taking more outcomes-based judgements"

I'm all for anything that gives PINS less scope to refuse to validate ("accept") applications for examination. The fact that merely having your application validated is a cause for such celebration and relief (as evidenced by numerous Linkedin posts) tells you something is very wrong with the regime. PINS has far too much power, and is sometimes exercising it unhelpfully with regard to acceptance: nit-picking over the content and quality of documents; and able to decree that consultation was "inadequate" based on the views of local authorities (who are often objectors). Unbelievably, PINS has just compounded the problem by updating its guidance to encourage the general public to submit representations on whether consultation was adequate. Since every person bothering to put in such a representation is likely to be against the project in principle, I'm not sure how objective or helpful PINS thinks these representations will be. It certainly goes beyond anything required by the Planning Act 2008, nevermind any other regime.

Although not that many applications are refused validation, the fear of such rejection drives excessive caution by developers on consultation and document preparation (adding to time and cost). This fear of non-acceptance isn't a feature of other consent regimes (the Town and Country Planning Act, Transport and Works Act etc) even for the very biggest schemes, of far more complexity than many DCO projects.

The fix being proposed in the Working Paper is rather woolly – yet more guidance to applicants about consultation being "proportionate"; being clearer about the factors that PINS may "factor in" and "consider"; plus changes to the PINS "acceptance checklist". The definition of insanity is doing the same thing over again and expecting a different outcome. We've been here before. There have been so many variants of the guidance to developers trying to tread the line between telling them to do thorough but proportionate consultation. It has made no difference and will make no difference.

The real problem, the real distinction between the NSIP regime and those regimes where people don't celebrate acceptance on Linkedin, is that there is no legal requirement to carry out pre-application consultation in Acts other than the Planning Act 2008. It is just best practice. Regardless of any guidance, this will always drive different behaviours, and for good reasons which I have written about previously.

If you coupled the removal of this legal duty with a Direction from Government to PINS clearly stating that rejections should be exceptionally rare (with some extreme examples), you start to create the step-change we need.

Poorly prepared applications which have failed to identify issues due to lack of appropriate engagement and consultation with key consultees should be allowed to enter the process (by being accepted) and fail during the examination. That is all the safeguard we need – or is certainly a better solution than what is proposed. It's true that we'd have to accept some half-baked, poorly prepared application entering examination, but so be it. They would be at higher risk of failure and come under more pressure to prepare additional/better documents during the examination – failing which their DCO is unlikely to be granted. Others would soon learn by their failure. PINS wouldn't like this change of approach but they would get used to it, and we need them to.

PROPOSAL 2: "Introducing a new duty on all parties to identify and narrow down any areas of disagreement during the pre-application stage"

Enshrining this as a legal duty in the Planning Act 2008 seems to me an astounding suggestion. I've explained previously why the whole premise of the 'fast-track' regime brought in by the previous Government was ill-conceived: the idea that the way to make the regime work better is to somehow force the key parties to agree everything before the examination starts. I won't re-iterate those views. You can read them here: [Fast-track: Not worth the bother]; and [Nightmarish paper-chase of DCO examinations].

These new proposals appear to double-down on this previous idea but, recognising how difficult it is to achieve, the suggestion is that it becomes elevated to a legal duty. How will one prove whether one has met this duty, and whose fault it is if agreement isn't reached? What is the penalty if the duty is breached? Who decides if it's breached (PINS?). By law, the party who felt the other hadn't met the legal duty could bring a legal claim against them for breach of statutory duty. Talk about adding greater pain to an already painful pre-application process!  

The suggestion is that the Consultation Report should "summarise how [the applicant] and consultees, in their view, have met the duty to narrow the areas of disagreement." The question of whether each party has tried hard enough to narrow the areas of disagreement therefore appears set to become a new hurdle to getting your application accepted. Since the worry over acceptance is already driving ever-longer consultation by developers, it seems foolish to add this new burden of proof on developers. It also has scope to increase tensions between the developer and statutory consultees – who will now potentially not only disagree over a particular issue, but end up indulging in an unseemly "he said, she said" scrap over whose fault that is.

This idea falls squarely into the category of one which will drive longer programmes and more developer uncertainty, not less.

PROPOSAL 3: "Revising requirements around the content of consultation reports so that they can report on the themes and issues raised across consultation responses"

This is pure commonsense. There has been a trend for applicants to give responses to each and every person's consultation response in the Consultation Reports submitted with their application. This has never been required under the Planning Act, which simply requires this report to explain how the applicant has 'had regard' to consultation responses in developing the project. We have always recommended to our clients that they give thematic responses. By all means, the Government can ensure that approach is endorsed by official guidance (from PINS or central Government). This should save some needless resource. It won't shorten overall consent programmes, however, as preparation of this document is always carried out concurrent with pulling together other application documents.

PROPOSAL 4: "Removing the requirement to consult category 3 persons during the pre-application stage"

Category 3 persons, for those not steeped in DCO jargon, are primarily landowners outside the red line boundary of a proposed scheme who might nevertheless be able to make a claim under the Land Compensation Act 1973 for nuisance - due to factors including operational noise or light pollution from the scheme. For rail or aviation schemes in particular, working out who these landowners might be is annoying, expensive and tricky (given it requires judgement calls). I therefore very much support getting rid of the duty to identify and carry out pre-application consultation with such landowners.

The Working Paper, however, rather oversells this change.  Yes, it's helpful, but we need to adopt the same approach to landowners within the redline, to align with all other consent regimes. It should be best practice to consult them in the pre-application stage but not a legal duty. To be clear, the legal duty to seek representations from them as soon as the application is submitted should of course be retained.

PROPOSAL 5: Delivering on the 'one-stop-shop' vision of allowing DCOs to wrap in other consents

Wrapping in to a DCO the other consents needed for a project is not something I think is practical to achieve. The Working Paper correctly lists some of the reasons why.

A particular impediment is the lack of detailed information sufficient for the regulatory approvals to be wrapped in with appropriate conditions, or safely disapplied, at the DCO stage. This is often because the developer won't have a contractor appointed (and why should they incur that expense before they get the DCO). The methodology to be used by the contractor and the activities they choose to undertake will dictate many of the other consents they need, as well as the information that regulators require in order to decide whether consent should be granted and on what terms.

Many of those consents will be minor or very specific, but that doesn't mean they don't need individual consideration from an environmental or safety perspective.

The good news is that I don't think most developers are actually calling for DCOs to be more of a one-stop-shop. They factor into their programme the getting of other consents in the timescales they need – or more often leave contractors to get them. Operational consents and permits, if needed, are even further away, and the above applies equally to them.

Some lawyers are calling at least for a lifting of the veto that certain regulators (like the Environment Agency) have over wrapping in their consents. They suggest that developers should at least be able to put forward a case for any consent they like to be deemed granted (subject to terms included in the DCO) or disapplied. I am not against this change in law. But I don't think it will lead to much of a change in practice. Very few developers will bother trying to get, for example, a major environmental permit consented via their DCO. Even if they have most of the information that the Environment Agency would require for a standalone permit application, they will know that the Environment Agency is likely to fight them during the DCO examination as they won't like the idea of such inclusion. And, as we know, PINS almost never feels comfortable coming down on the developer's side against a powerful regulator like the Environment Agency. If the Environment Agency says there's not enough information provided, or they need more time to consider it which will take things outside the 6 month DCO examination, it seems highly unlikely that PINS or the Secretary of State would over-rule them.

In summary, if a developer happens to have all the information a regulator would require in order to grant consent for some permit or licence at the time of the DCO application then why not just apply for it separately at that time? If not, I can't see the Secretary of State granting a DCO with that permit wrapped in.

PROPOSAL 6: Process for making minor corrections to DCOs soon after they are made

The suggestion here is that a draft of the DCO is published alongside the Secretary of State's decision-letter, with a  two-week window for applicants to propose corrections. This is a minor procedural change which I don't have a strong view on. It won't save time on a developer's programme compared with the status quo.

PROPOSAL 7: Creating a single process for material and non-material changes to DCOs

This relates to the circumstances in which a developer has been granted their DCO and is building out their project, but wants to vary its terms. At the moment there are two routes: one for 'material' changes, and one for 'non-material' changes. The bar for a material change is quite low, and ultimately a judgement call for PINS. There have not been many applications for material changes as the process set out in Regulations is laborious, mirroring in many ways the process for obtaining the DCO in the first place, and taking up to a year (excluding pre-application consultation). For non-material changes the process is much lighter-touch, but has no fixed statutory time-scale for determination, so quite often the application sits on the Secretary of State's desk undetermined for months. I'd agree the current system is not ideal.

However, if we move to a single process I worry that it would be modelled on the existing material change regime. Under the Town and Country Planning Act 1990 ('TCPA') regime, even material changes to really significant schemes can be dealt with without such a procedural burden: there is no legal duty to carry out pre-application consultation (it's just best practice); people have a chance to make representations once the application is made; the planning officer writes up a report and recommends approval or refusal to the committee; and the committee makes a decision. For less substantial changes the officer makes the decision him/herself, without going to committee.

Couldn't we have something modelled on this? With the Secretary of State being the decision-maker of course rather than a planning committee or the officer in my TCPA example. In exceptional circumstances, perhaps, the Secretary of State could opt to hold hearings but only in circumstances where he/she felt unable to understand the issues from the papers (which you hope would be rare).

I have two other proposals which would make post-DCO changes easier: (i) include provisions in the Planning Act 2008 that make it possible for developers to include bespoke change procedures in their DCOs, encouraging creativity and flexibility by developers in coming up with ideas which suit their project; and (ii) add drafting to the Planning Act 2008 to make clear that 'dropping in' a TCPA permission over the top of a DCO does not create a 'Hillside' problem (of one or other being invalidated where the two clash). Such drop-ins will often be the quickest and best way for a developer to achieve a change to their scheme without having to vary the DCO. Developers are putting forward slightly convoluted drafting in their DCOs currently to try to address the Hillside risk but it really needs a legislative fix. I have a note on these proposals which I'm happy to share with anyone interested, or I may set out in a future Nutcracker.  

In terms of speeding up end to end programme, such changes probably won't make any difference. But they would be very helpful to developers, and achieve cost-savings by enabling sensible changes to a project to be made post-consent more easily.

PROPOSAL 8: Allowing developers to opt out of the NSIP regime (as well as into it)

This is a great idea. I am all in favour of this flexibility and have written about this previously: [Make NSIP thresholds flexible if you want growth]. There will be a number of case-specific factors which drive which route is faster and cheaper for a developer, and how that weighs against how likely they think a positive decision is under each consent route. Let developers choose.

It will be important that the criteria for opting out are loose and that the Secretary of State has a fast turnaround when deciding them. My experience of seeking to opt-into the regime under s35 is that the Secretary of State's team asks more questions than they need to. Frankly, I'm not sure why it isn't fully left to the discretion of developers to choose. That would be the most pro-developer, pro-speed, way to go. But certainly if there are to be criteria then they need to, in effect, make it at the developer's discretion by saying that it is sufficient justification for a developer to be granted consent to opt-out if they believe (and Secretary of State is satisfied) that they are likely to get a quicker and more cost-effective decision via the alternative route, which in many cases will be the TCPA.

Asking the Secretary of State to actively make this decision (to let certain developers opt out based on speed and cost) might in practice put him/her in a slightly difficult position. The anti-groups will want the slowest, most expensive route for a developer (the NSIP regime that the developer is seeking to opt out of). For the Secretary of State to have to put in writing that they're letting a developer go for a quicker and cheaper route might incense the anti-groups and be used for political capital. Yet what other grounds can a developer drum up for wanting to opt out in each case, except this, and why should they?

So the Government might want to consider whether it would be better to make the opt-out one which is entirely at the discretion of developers. Developers would simply notify the Secretary of State that they were opting out. If the Government is nervous about this complete discretion then a power might be provided for the Secretary of State to serve counter-notice if for some reason they wish to insist that the developer uses the DCO regime.

PROPOSAL 9A: Process modification powers enabling joint consultation and examination of clusters of NSIPS in one region

The Working Paper states that: "As things stand, NSIP applications move through the system independently, but this can mean that co-ordination of these schemes is difficult, to the detriment of communities and developers. Greater flexibility in the process could bring benefits to all parties by enabling projects to be jointly consulted on or examined (including for example through joint hearings or representations from stakeholders). Indeed, this has already occurred for offshore wind schemes under the existing flexibility offered by secondary legislation and guidance. However, there may be greater potential to carry out joint hearings or representations across sectors in a single area or in cases where separate DCOs interact. Further changes could also include requiring greater co-operation between applicants, to help local areas manage the cumulative impacts of multiple infrastructure projects both during and after the consenting process."

I don't think this is something that developers will ordinarily welcome. I assume the offshore wind projects referred to are the East Anglia 1 North and East Anglia 2 projects, which had the same developer. The risks and uncertainties involved in unrelated developers trying to coordinate their activities before, during or after the granting of a DCO, are too many to list. Forcing this sort of coordination is likely to slow down programmes as all parties try to coordinate and end up going at the pace of the slowest. It's hard enough coordinating all the elements of a single project to ensure they come together. To try to do this with multiple projects is a recipe for disaster. At most this should be optional, with developer's agreement only, not something to be mandated by PINS.

PROPOSAL 9B: Process modification requiring more joint working by Councils across scheme boundaries for complex or linear projects

The suggestion is that: "Modifications to the consultation processes could be designed to support or require more strategic working between local authorities across the route, to simplify the process for applicants, while supporting communities to collaborate to secure optimal benefits. This could include standardising survey methodologies for the route of a proposed development, where currently there are often differences between Local Authorities on the approach, type of information and survey information required for issues such as archaeological assessments." There is mention of a group of local authorities appointing the same Counsel to represent them at a recent examination, which is said to have reduced hearing time required. I assume this is the Gatwick DCO examination that my team led.

I'm not sure how local authorities can be forced to agree to have the same Counsel, or to endorse the same survey methodologies. Like other parties, they may or may not have common interests and opinions that mean they feel it is in their interest to collaborate. Guidance could encourage them to consider "strategic working" with neighbouring authorities but I don't see it could do more than that. For this reason, I don't see this guaranteeing much speeding up.

PROPOSAL 9C: Process modification powers allowing a more streamlined process for solar

The Government is interested in whether the current regime is "too rigid." They cite solar projects (which they say tend to raise fairly limited and predictable issues) as cases which might benefit from some streamlining of process. In theory, it makes complete sense to be able to create a lighter-touch process for something like solar. I just wonder how this would work in practice. See my over-arching comments on the "Proposal 9" concept of process modification.

PROPOSAL 10: Strengthening statutory guidance

The Working Paper suggests that the Secretary of State is given a wider power to issue statutory guidance in relation to all stages of the DCO process, not just the pre-application stage. I have no objection to this, except that it risks confusion because it means there will be two sets of guidance on the same topics. PINS has already created a huge body of guidance which it updates frequently. It might be better to ask PINS to remove its guidance to the extent that a given topic is to be covered by Secretary of State's guidance instead.

Controversially, I would say that the system worked better when there was much less PINS guidance, and when it was updated less frequently. Instead of periodic replacement of a whole guidance note with a new version, PINS now updates paragraphs of its guidance here and there on a piecemeal basis, making it easy to miss changes.  The bar to PINS adding to the procedural burden on developers by slipping in new "best practice" requirements also seems to have got lower.  

If the Secretary of State is to have powers to issue guidance, then I would encourage that power to extend to the issuing of Directions to PINS, so that clear and specific instructions can be given about how PINS is to exercise its powers at every stage of the process to maximise efficiency and reduce the burdens on all parties.

I would urge the Government to involve developers in drafting any Secretary of State guidance and any Directions to PINS, so that they are as developer-friendly as possible within what is reasonable and fair.

Done with a single-minded, developer-friendly mindset, such guidance and Directions brought out by the Secretary of State could make a real difference to the efficiency of the regime, reducing the man/woman-hours involved so that there are enough professionals to spread across the 150 NSIPs the Government wants to consent in the next 4 years.  

PROPOSAL 11: Updating the consenting regimes for the Highway Act 1980 and Transport and Works Act 1992

The Working Paper makes a number of proposals with regard to procedural aspects of these two regimes, such as cost recovery and fixed statutory timescales. I will leave others with more hands on experience of these regimes to comment, but most seem fairly sensible.

In passing, I would just say that I don't think cost-recovery is the effective tool to ensure better engagement and resolution of issues that Government thinks it is. You need central Government to allocate more budget to public bodies so they can hire permanent staff, and pay them more competitive salaries. Feedback I've had from developers about their experience of paying some of the statutory nature conservation bodies for their time bears this out. They are not seeing any better engagement despite the cost-recovery regime now kicking in.

Conclusion and additional suggestions

I apologise to those involved in drafting the Working Paper for my scepticism. I know what a difficult task it is to propose modifications to a regime to make it faster and less burdensome knowing the criticism this may attract from the public, and even PINS, statutory consultees and others. People get used to process. Precedent builds up and is soon thought of as 'best practice'. Scaling it back in a way that creates the step-change we need requires honesty and bravery.

Politicians and civil servants can collect together ideas, but unless they have worked in planning themselves, how can they tell if those ideas add up to less time to get things consented? They are relying on those who work in the industry to tell them, so that the Government can deliver what it has promised the country: 150 consented projects in just over 4 years, and the achievement of its Clean Power 2030 ambitions.

I will be sending this article to the Ministry and Housing, Communities and Local Government, and am happy to work with anyone within Government on proposals that go further. Those, I suggest, should include:

1. Removing the s42 pre-application consultation duty. This is the legal duty to consult (at the pre-application stage) all landowners within the redline, and all statutory bodies. Replace this with guidance that recommends engagement with such parties, but clarifies that the 'adequacy' or otherwise of such engagement and consultation will no longer be a reason for PINS to refuse to validate an application. This aligns with all other consent regimes, and would have a radically positive effect on reducing the pre-application period.
2. Remove the duty to prepare and consult on 'preliminary environmental information': The preparation of this report (in effect a draft environmental statement) is a huge and unnecessary burden. Effective engagement does not require preparation of information in this format, and it is not required under any other consent regime. This change would not only shorten the pre-application period but free up precious consultancy (and statutory consultee) resources to spread across other projects we need to get through the system.
3. For political reasons it may be expedient to retain the legal duty on applicants to carry out pre-application consultation with the local community (under s47). Retaining this as a legal duty is still more than provided for in any other consent regime. It is, however, less onerous than the mass land-referencing and PEIR production exercises which are required for s42 consultation, and would not impact programme time-savings otherwise achieved by my proposed changes above.
4. Empower the Secretary of State to issue Directions to PINS on how they are to carry out their functions for the NSIP process. The purpose of this publicly available document would be to reset some of PINS' customs and practices that have built up over the years and which are creating unnecessary work. To guide them to acknowledge all views but focus interrogation on the key issues, as in the earlier days of the regime. If drafted properly, such a document should reassure developers that PINS will be more proportionate and pragmatic in terms of what it asks of them and how the process is run at every stage. It should make reference to specific examples and rules to maximise effectiveness.
5. Add a provision to the Planning Act which removes the Hillside risk when a TCPA application is 'dropped in' over the top of a DCO. I have drafting I can offer to effect this change. Such drop-ins are often the quickest and least onerous way to achieve a scheme change post-consent where the local planning authority is supportive.
6. Add a provision to the Planning Act that allows developers to include bespoke procedures for approval of changes to a DCO post-grant. Such drafting could define the circumstances in which that process could be used instead of the material and non-material process in the Act. Any such drafting would of course be tested on a case-by-case basis through the DCO examination to ensure procedural fairness and appropriateness. It would allow for some flexibility and creativity from developers to create processes that suit their particular circumstances.
7. Expand and simplify the rights of access over land for EIA and other surveys where a person intends to make an application for a DCO. Replace s53 Planning Act with a right akin to s172 Housing and Planning Act (access on 14 days' notice). This right should expressly cover persons with the benefit of a s35 Direction allowing them to opt into the regime, or those who have otherwise registered their intention to make an application for a DCO. Currently not all potential DCO applicants benefit from s172 powers. The benefit of land access on 14 days' notice is likely to become more important as the categories of project which can apply for DCOs expands. The process for obtaining access via Secretary of State consent under s53 Planning Act takes many months.

For the avoidance of doubt, the above measures are proposed in addition to the measures in the Working Paper that I specifically endorse in this article.