Draft Planning and Infrastructure Bill published

On 11 March 2025 the much-anticipated Planning and Infrastructure Bill was published. This is a flagship piece of legislation for the government and is intended to introduce new measures to “speed up planning decisions to boost housebuilding and remove unnecessary blockers and challenges to the delivery of vital developments like roads, railway lines and windfarms” (the government’s press release is here: 'Biggest building boom' in a generation through planning reforms - GOV.UK).

This update focuses in more detail on the proposed changes to the nationally significant infrastructure project (NSIP) regime set out in Chapter 1 of Part 1 of the Bill. With the government aiming to consent 150 such projects by 2029, the NSIP regime is widely recognised as needing significant reform if the government is to achieve this ambitious target. To illustrate the scale of the challenge, by our reckoning consent was granted for 8 projects in 2023 and 16 projects in 2024. In the first quarter of 2025 consent has been granted for 3 projects, with a fourth (the Hinckley National Rail Freight Interchange) refused consent on the same day the Bill was published.

Briefly summarising the clauses of the Bill that relate specifically to NSIPs:

• Clause 1 requires the Secretary of State to review and amend National Policy Statements (NPSs) ‘whenever they think it appropriate to do so’, and in any event at least once every five years. The Secretary of State may only delay a review in exceptional circumstances. Although giving legal effect to a requirement to keep the NPSs (reasonably) up to date is welcome, recent NPSs (e.g. for energy) already state that the Secretary of State should consider whether a review is required at least every five years.

• Clause 2 makes changes to sections 6 (review) and 9 (parliamentary requirements) of the Planning Act 2008 to amend the procedure for amending NPSs, making it simpler in certain circumstances.

• Clause 3 introduces a potentially significant new power for the Secretary of State to disapply the requirement for development consent by giving a direction. This is, in effect, a reverse section 35 power (section 35 directions can be used to ‘opt in’ to the NSIP regime). The circumstances in which the Secretary of State will be willing to exercise this power are as yet unclear, but we can certainly think of examples of projects which could have made a good case for not being treated as NSIPs, even though they technically exceeded the thresholds set out in the Planning Act.

• Clause 4 sets out a new meaning of ‘consultation report’. It confirms that promoters may summarise certain information in these reports, which should help make them more concise (they commonly run to hundreds of pages at present, making them difficult to navigate and digest, although promoters tend towards including summary / thematic information already). This clause also introduces a duty on consultees (including local authorities) to have regard to guidance issued by the Secretary of State in their engagement on DCO applications, including in the preparation of local impact reports. Guidance from the Secretary of State that encourages a proportionate, objective approach to engagement would be welcome.

• Clause 5 should be helpful to promoters as it removes the legal requirement to consult ‘category 3’ persons during the pre-application stage. ‘Category 3’ persons are those who might be entitled to make a ‘relevant claim’ (as defined in the Act) because of the DCO. They often number in the hundreds, creating a considerable additional burden for developers during the pre-application stage. It has long been unclear how category 3 persons are supposed to be identified and clause 5 requires guidance on that to be issued by the Secretary of State.

• Clause 6 makes several changes to the 28-day acceptance stage, including the standard an application must meet to be accepted. The Secretary of State must be able to conclude that the application is “suitable to proceed to examination”, compared to the current test of whether the application is of a standard the Secretary of State considers satisfactory. New subsections set out criteria the Secretary of State must take into account in their decision. Overall it does not look like this will materially alter the bar for acceptance, which does occasionally cause difficulty for promoters. A new section 55A establishes a process for amendments to applications, which may prove helpful if there are issues with an application that would otherwise have required it to be withdrawn and resubmitted.

• Clause 7 enables an Examining Authority (ExA) to make an order for the costs incurred by parties in relation to a DCO application. This is to ‘clarify and put beyond doubt’ that an ExA can make a costs order at any time after they have been appointed. If necessary the High Court can enforce a costs order. The current guidance on costs awards was published in July 2013 and was expected to be revised last year, so expect updated guidance to follow shortly.

• Lastly, clause 8 introduces changes to judicial reviews of decisions on DCOs. Applications for judicial review that are refused permission at the first (High Court) stage and are deemed “totally without merit” will not be able to appeal that decision to the Court of Appeal. This in essence will prevent claimants having multiple ‘bites of the cherry’ when it comes to challenging DCOs. Although this represents a potentially significant and welcome reform of the system, in practice there must be some doubt as to how frequently judges will be prepared to certify challenges as being “totally without merit”. In finely balanced cases we anticipate that the Court may err on the side of caution and allow challenges to proceed to a substantive hearing.

Some notable omissions from the Bill include the changes to NSIP thresholds for energy projects (these are being introduced separately via the Infrastructure Planning (Onshore Wind and Solar Generation) Order 2025) and costs recovery for host local authorities, which we anticipate will be introduced via an amendment to the Infrastructure Planning (Fees) Regulations 2010.

Although these clauses represent welcome changes and updates to the NSIP regime, in our view they are unlikely to significantly decrease the time it takes for consents to be granted. Given the government’s stated ambitions, they may need to go further, faster in terms of accelerating projects through the process.

For more information on the Planning and Infrastructure Bill, or to discuss nationally significant infrastructure projects more generally, please contact Katherine Evans or John Arthur.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.