Labour's Manifesto – Energy and Infrastructure: can they speed up consenting where so many have failed?

It is notable that Labour's "five missions to rebuild Britain" do not include planning reform, nor is planning reform one of Labour's "first six steps for change". Nevertheless, the need for planning reform is recognised in Labour's manifesto pledges to "Kickstart economic growth" and "Make Britain a clean energy super power." It was also something that Sir Keir Starmer emphasised in his recent Panorama interview with Nick Robinson.

It's fair to say that the manifesto is light on detail as to how reforms are to be achieved. But in this blog I set out what Labour hopes to achieve in relation to the consenting of energy and infrastructure projects, and how realistic those aims might be. I also make some suggestions of my own.

For a commentary on Labour's aims in relation to local planning and housing please read my colleague, Martyn Jarvis's blog here.

1.    HEADLINE COMMITMENTS AND ASPIRATIONS

The headlines in terms of energy and infrastructure consenting:

2.    NEW INSTITUTIONS TO BE SET UP

Allied to all of the above, Labour will set up several new institutions:

1. the much-trailed Great British Energy (which is expected to absorb the Conservative's Great British Nuclear);
2. an Industrial Strategy Council, to be set up on a statutory footing. It seems that the industrial strategy to be set by this council will cover the new high-tech end of infrastructure (the development of the Artificial Intelligence (AI) sector, datacentres, advanced manufacturing, and creative industries); and
3. a new National Infrastructure and Service Transformation Authority "bringing together existing bodies, to set strategic infrastructure priorities and oversee the design, scope, and delivery of projects". This body will help set out a ten-year infrastructure strategy.

3.    HIGH ON AMBITION, LIGHT ON DETAIL 

The Labour manifesto is high on ambition – doubling onshore wind, tripling solar power and quadrupling offshore wind, all by 2030. It also recognises that the inadequacy of our national grid as the biggest obstacle to achieving this. Our existing power lines, built mostly in the 1920s/1930s and 1960s/1970s to take electricity from coal and nuclear power stations, are simply not enough or in the right places to gather and distribute electricity from proposed renewable energy projects.

The question left unanswered (understandably for now) is how exactly Labour thinks they can get all of these projects through our slow and bureaucratic planning system by anything like 2030. The manifesto suggests Labour will "make projects faster and cheaper by slashing red tape", but will they be any more successful that the Conservatives at achieving this?  Successive administrations have pulled back from the sorts of changes that will take years off timelines, for fear of a backlash, being seen to water down protections and community involvement etc.

After several years and numerous consultations, the Conservatives recently revealed their "fast track" for nationally significant infrastructure projects (NSIPs). I wrote a blog [here] explaining why it will be ineffectual, and I have yet to find a developer intending to use it.

I know that a huge amount of work went into the development of the fast-track proposals, by many who understand the challenges of the current system. This only goes to show that finding effective reforms which are politically acceptable is very difficult.

4.    THE FUNDAMENTAL PROBLEMS WITH THE PLANNING REGIME FOR NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTS

The NSIP planning regime, also known as the "DCO" (development consent order) regime, was originally brought in by Labour in 2008. It worked ok for a while. But over time, custom and precedent at the Planning Inspectorate and amongst developers has led it to become longer and longer, and more and more onerous.

It suffers from two fundamental problems which I describe below.

NSIP pre-application consultation takes years because of its status as a legal requirement

Firstly, the Planning Act 2008 made pre-application consultation a legal requirement (as opposed to simply recommended good practice as for all other consenting regimes then and now). I explain in section 2 of my blog [here] why this has had the unintended consequence of developers carrying out multiple rounds of consultation over several years before making applications even for relatively simple projects. For the numerous Great Grid Upgrade projects, I predict it will not be unusual to see 3 or 4 years of pre-applications surveys and consultations before applications are made. Every time consultation feedback or further technical work suggests a slight change to the route alignment, there will be a need to survey the new route and reconsult.

Contrary to what people will tell you, this is not a problem that can be fixed by yet more guidance trying to reassure developers they don't need to consult so much. We already have guidance that says that and has said it for years. The recent tweaks to this guidance are helpful but won't move the dial.

Replacing the legal duty to consult with a recommendation to do so would make the biggest difference any reform could make to the timescales for consenting UK infrastructure. It would also be incredibly simple. This would put the regime on the same footing as Hybrid Bills (for things like Crossrail and HS2), Transport and Works Act Orders (used for railway lines and bridges among other things), and the Town and Country Planning Act 1990 (used to consent major housing developments, solar farms/energy from waste plants below 50MW, and much more). The developers of all such projects consult before making applications, but generally just once, and in a way which is more succinct and accessible to the public - without the fear of a legal test hanging over them.

Labour won't do it though because (i) they won't understand the difference it would make (and there are too many vested interests in the status quo to tell them); and (ii) they will fear such a change would be spun as watering down democratic involvement. This is a real shame, because as I say, there are plenty of other major projects outside the NSIP regime that do it differently.

NSIP examinations are excessively onerous and ultimately rely on parties reaching agreement

The second problem is that NSIP applications are examined by the Planning Inspectorate primarily through written questions and exchanges of written submissions between objectors and applicant (over a fixed 6 month period). This is a torturous way to consider complex or contentious issues. Over time this has had the unintended consequence that the Planning Inspectorate (burdened by thousands of pages of conflicting views) mostly relies on applicants reaching agreement with key objectors. Without such agreement the Planning Inspectorate struggles to recommend approval. This often puts the Secretary of State in the awkward position of having to ask more questions (and delay the decision) with a view to justifying approval in the face of a recommendation to refuse. Custom and precedent, built up over time has exacerbated this problem. I explain why in my blog here, in which I also suggest some ways to make things better. Cultural change at the Planning Inspectorate is a key part of this – and likely to be far more difficult than any change in law (as all cultural change is).

5.    GIVE DEVELOPERS FLEXIBILITY OVER HOW TO OBTAIN CONSENT

One parting recommendation from me for an incoming Government: think twice before making it mandatory for new classes of infrastructure to use the NSIP regime. In fact, change the Planning Act 20028 to allow developers to opt out of it, as well as to opt into it.

I worry that Labour might think it helpful to class all proposals that could be locally unpopular (onshore wind farms, data centres, and even prisons) as NSIPs. As explained above, the NSIP regime has morphed into something slow and unwieldy and reversing that will be difficult. The NSIP regime is extremely useful if a developer needs powers of compulsory purchase over land in addition to the right to develop. But in most cases, where only planning powers are needed, a developer would obtain consent faster and with less cost and effort if they obtained a refusal from the local council, but overturned that decision by bringing an appeal using a traditional planning inquiry.

You may be shocked by this, as the received wisdom has always been that the NSIP regime was brought in to be faster than the regimes it replaced: in particular, to stop the 2 - 3 year public inquiries for the likes of Heathrow Terminal 5 and Sizewell B. However, those were the exceptions not the rule. Most public inquiries, then and now, take only a matter of weeks or a couple of months. And if you factored in the several years of pre-application consultation required by NSIP applications, on top of the 18 months to get a decision after you apply, the start-to-finish timeline for infrastructure consented via the NSIP regime would in most cases be slower than the regimes it replaced. Certainly Sizewell C took longer to obtain consent (start to finish) via the NSIP regime than Sizewell B did, despite the latter's long inquiry.

Strong policy support can be put in place without National Policy Statements

For classes of infrastructure left outside the NSIP regime, clear policy support will be required to assist them in obtaining consent either locally or, failing that, via planning inquiries. But that policy support need not come in the form of the lengthy all-singing-all-dancing National Policy Statements that underpin NSIP applications under the Planning Act 2008. It could take the form of a couple of paragraphs in the National Planning Policy Framework [here], or a short Written Ministerial Statement (WMS) which provides expressly that it must be taken into account by councils (and Planning Inspectors) in making planning decisions.

In cases where the Government wants to ensure approval is given, the Secretary of State may 'call-in' a planning appeal for his/her own determination, instead of leaving the final decision to the Planning Inspector who heard the inquiry. Such call-in decisions then act as powerful precedents for similar decisions which are decided by Inspectors in future.

In other words, the non-NSIP planning regime has plenty of effective tools to facilitate consenting of infrastructure. Government just needs to understand and use them more.

Let developers opt out of the NSIP regime, as well as into it

Ideally, the Planning Act 2008 should be made more flexible, so that developers can choose whether to opt in or opt out of the NSIP regime, depending on what is likely to be most useful and efficient for their project. At the very least there should be minimum and maximum thresholds of project within which such a choice is given.

Projects can already request consent from the Secretary of State (under s35) to opt into the NSIP regime where they would otherwise need to obtain consent from the local planning authority under the Town and Country Planning Act (or other regime). Some interconnector projects, for example, have chosen to do this – interconnectors, oddly, not being a class of project where the NSIP regime is mandatory.

Why not also let developers caught by the thresholds in the Planning Act opt out if they want to? This would avoid, for example, the cliff edge effect where solar developers often choose to seek consent for 49MW projects in order to avoid having to use the NSIP regime (which kicks in for projects over 50MW). It would also avoid the madness of projects like this one [here] having to seek consent as "nationally significant infrastructure projects": This project is an energy from waste power station which originally got planning permission as a sub-50MW project and is part-built. By law it now needs a development consent order (DCO) in order to authorise fitting a valve - because that valve will increase the electricity it produces to 65MW (making it an NSIP). No other physical changes or impacts arise. Indaver is simply making the plant more efficient - same inputs, more electricity output. The time, effort and cost required to put this project through the NSIP regime should make us all blush.

I am glad Labour has not been prescriptive about how it intends to reform the planning system to achieve its growth and energy ambitions. There are a lot of bad ideas that regularly do the rounds. I intend to call out some of these in my Prayer for Serenity series of blogs [here]. Please subscribe if you're interested. I hope also to identify some less obvious but more effective reforms, in addition to those set out above.