PINS Pre-application Prospectus – known knowns, known unknowns and unknown unknowns

Summary

The Planning Inspectorate (PINS) has published a "2024 Pre-application Prospectus" (here) (the Prospectus), which sets out the details of the new pre-application "service" proposed by PINS to respond to the operational reforms to the NSIP regime trailed in recent months. In particular, the Prospectus provides greater detail on:

• "The introduction of three pre-application tier options reflecting different levels of service that applicants may receive from the Inspectorate ahead of submitting an application.

• The introduction of pre-application fees associated with the service under each pre-application tier, discharging government’s policy ambition for the Inspectorate to achieve full cost recovery for the services it provides.

• The introduction of a "Fast Track" procedure which will allow some applications, that are able to satisfy a new Quality Standard, to potentially receive a decision within 12 months from the point that the application is accepted for examination."

The Prospectus was published alongside a number of other supporting materials and updates to guidance, including:

• an FAQ paper regarding the Prospectus - here;

• guidance on the "Fast-Tack" process - here; and

• updated guidance on the pre-application stage - here.

Further analysis

An immediate reaction is to note the volume of material produced as part of these updates/publications (and indeed those which preceded them, which we have commented on in our previous Monthly NSIP Newsletters - refer to our main blog page here) and which reflects the significant effort that has clearly gone into their concept development. We have been, and remain, critical of the proposed reforms and their likely implications; however, that's not to under-estimate the genuine effort that has gone into their development.

It's also acknowledged that ultimately the "proof of the pudding is in the eating" and we'll need to see how these reforms bed-in over the coming years and the impact they have on process/speed (and this should be from project inception to delivery, or else what's the point?) before reaching any definitive conclusions. To that end, we've looked to focus our commentary below on some of the key "known" changes, which applicants need to be aware of now, and are more limited in speculating on what their effects could be, which are necessarily more unknown at this stage.

What is changing?

More documentation

Applicants will need to produce and maintain:

• A Programme Document ahead of the inception meeting with PINS, which is to set out the "main steps that the applicant anticipates taking during the preparation of the application" and which is to be published on the applicant's website.

• An Issues Tracker throughout the pre-application stage, which is to be made available for regular review by PINS, affected statutory bodies and local authorities in order to "encourage dialogue and, where possible, achieve resolution". A RAG status should be allocated to the issues and applicants are expected to be "upfront about issues". Lawyers everywhere will be looking forward to the discussions on "internal" and "external" risk registers.

• Building on the Issues Tracker, applicants are then to prepare a Potential Main Issues for the Examination (PMIE) which is to be entered into the examination as an application document and is ideally to be agreed with the relevant statutory bodies and local authorities.

There are helpful templates for the Issues Tracker, PMIE and a flow chart of how they interact with the separate, but related, SoCG and Principal Area of Disagreement Summary Statement within the Prospectus. All of these are, of course, distinct from the Initial Assessment of Principal Issues which is within the remit of the Examining Authority. I hope this paragraph alone hasn't put off anyone who hasn't promoted a DCO to date and is considering doing so.

Adequacy of Consultation Milestone (AoCM)

The aforementioned Programme Document should also identify an appropriate milestone during the pre-application stage to enable PINS to "test the progress of the consultation" and which is described as an "Adequacy of Consultation milestone" in both the Prospectus and the updated pre-application guidance. To inform the AoCM and to add to the pre-app paperwork "the applicant will make a written submission to the Inspectorate which establishes the consultation undertaken to date, confirms the approaches set out in the Statement of Community Consultation, and summarises the consultation responses and the way in which they are shaping the application. Importantly, it should include the views and any relevant supporting material from local authorities if available." The guidance suggests this should be no later than around 3 months prior to the intended date of submission of the application, and so the Programme Document should likely start from this minimum assumption.

Demonstrating regard to advice

A new expectation setting a requirement to demonstrate the applicant's "regard to the advice that the Inspectorate and affected statutory bodies have issued during the pre-application stage". This is expected to be presented within the Consultation Report and should "highlight amendments to the application arising from advice received, and similarly provide justification where advice received has not led to an amendment to the application." In our experience, a lot of this information is typically already covered in the Consultation Report or other application documents (eg the Environmental Statement in relation to engagement carried out with statutory bodies); however, clearly the volume of PINS advice will be sensitive to their level of pre-application "service" which is discussed further below. It does introduce potential tension were applicants to receive advice from PINS which they disagreed with/chose not to follow in their application, particularly insofar as it's used as a relevant piece of information when considering whether to "accept" the application for examination. One could anticipate that in turn influencing what advice is sought during the pre-application stage (albeit the fact such advice will be published will always place a natural limitation on the sensitivity of the advice sought in any case).

A tiered pre-application service

• Basic – self-titled, and generally limited to the minimum statutory duties falling on PINS (ie screening and scoping) and very limited pre-application engagement/advice. It does not include any scope for any draft document review and so is a dilution of the existing service typically experienced by applicants.

• Standard – this is proposed as the default service tier, and more obviously resembles what will be familiar to applicants at the moment, with allowance for more pre-application engagement/advice and document review. It does not open a "fast-track" route in examination though. That is instead saved for…

• Enhanced – in effect, an examination(ish) before the examination (noting the proposed PINS facilitation in particular), and a necessary pre-cursor to the fast-track route. It will be genuinely interesting to see how this process, regardless of the fast-track route, plays out in terms of overall consent/delivery timescale and the resource implications throughout.

PINS have published a table setting out the distinctions between the services in a more comprehensive and helpful fashion than my summaries above here.

Applicants will need to pick one of the services (no service is not an option – consider it like tipping in America (or indeed London)).

For projects at an early stage, the service-tier election should follow in the Programme Document and be confirmed at the inception meeting, with charging to then commence from 1 October 2024.

For projects already in the system and who have already held an "inception meeting", the Prospectus sets out transitional arrangements which confirms that:

• For projects that have not notified PINS or requested an opinion in accordance with EIA Regulation 8 (typically done as part of the scoping request) before 30 April 2024, charging for their new services will begin on 1 October 2024.

• For projects that have notified PINS or requested an opinion in accordance with EIA Regulation 8 before 30 April 2024, charging for their new services will begin on 1 April 2025.

There's some initially slightly alarmist text in the Prospectus noting that whilst it's anticipated that PINS and the relevant applicant will typically agree on the level of service, in the event of disagreement, PINS' view is final. However, this is qualified in the Prospectus and the FAQ by confirming that PINS can only mandate a "lower" level of service. The concern appears to be where there's an over-subscription to one of the higher levels of service and not sufficient resource to cater for that demand.

Cost

The new service standard does not come free though, with the anticipated costs for the respective levels stated to be:

• Basic - £62,350 per year of service (with the updated guidance noting two years being the average pre-application period at the moment, and the maximum targeted as a result of the reforms);

• Standard - £126,050 per year of service; and/or

• Enhanced - £208,850 per year of service.

The stated costs reflect the anticipated days and mix of input required by PINS to deliver the service, with the relevant detail set out in transparent fashion in the Prospectus here. The Prospectus recognises that some agility between services may be required during the pre-application phase, but cautions that at least three months' notice of any desire to change tier would be required and the implications of this reflected in the Programme Document (also noting a move "up" the standard, will be resource dependent on the PINS side as well).

We have commented before on the principles of the cost-recovery arrangements introduced by the reform proposals (section 1 of our March newsletter here) and we won't repeat here, other than to note these are some large numbers and we imagine may be influential in informing which level of service applicants elect to request (certainly in the short/medium term whilst the reforms are bedding in). We've flagged before the need for the system to avoid creating any automatic adverse impression of applicants who do not sign up to the higher (or from another perspective, more onerous) levels of pre-application service, and for their application to continue to be judged on its merits upon submission regardless.

Fast-Track procedure and Quality Standard

The Fast-Track procedure and related "Quality Standard" merits a post of its own, which will follow shortly, and so for the purposes of this article, our limited comment in the context of the Prospectus and the "enhanced" service on which it depends, is that read altogether – the immediate impression is wondering why applicants would: (i) pay a lot more money; (ii) to do a lot more mandatory work; (iii) for outcomes that remain uncertain until they're absolutely not (broadly the close of examination); and (iv) to need to continually justify such approach for the privilege. We're also instinctively worried stakeholders will see "fast-track" and become fixated on that notion/concept (in the Programme Document and subsequent consultation materials), concerned that this an attempt to expedite the project without proper scrutiny, at the expense of engaging on the project more generally; however, perhaps that concern will be alleviated as the concept becomes more familiar and could otherwise be mitigated through "Independent community liaison chairs or forums" which are trailed as a concept in the updated pre-application guidance too.