Infrastructure Planning Blog

Welcome to the first Infrastructure Planning Blog, a new blog that follows infrastructure permissions and consents with a view to advocating positive change in line with the Government's ambitious objectives. This week's entry looks at the Government's announcements on consultation for nationally significant infrastructure projects.

The Government’s announcement on its proposed removal of statutory consultation is here. What’s happening? In short, it’s goodbye, arrivederci, and good luck to the statutory requirement to consult for nationally significant infrastructure projects. This is an expression of the Government’s desire to ‘back the builders, not the blockers’, and meet its ambitious target of consenting 150 DCO projects before the end of this Parliament. The government release (which we would recommend should be read whilst listening to ‘In Too Deep’ by Sum41, a song which, though released in 2001, is obviously about statutory consultation under the Planning Act 2008) sets out:

“Reforming lengthy pre-application consultation requirements will on average halve time taken to prepare applications - saving around £1bn for industry.. Developers currently spend significant time and money on long, technical documents resulting in communities feeling fatigued and confused, which is a direct result of overly complex planning rules that are leaving working people deprived of the things their areas need to thrive. It also disincentivises developers making improvements to projects for fear of having to re-consult, even if in the community’s best interest”

The Written Ministerial Statement sets out:

The government has concluded that these statutory requirements, absent from other planning regimes, including those used to determine applications for new housing, now serve to slow down projects and deter improvements to them – wholly contrary to their nominal purpose of producing better outcomes… I am, therefore, today announcing that the government will amend the Planning and Infrastructure Bill to remove the statutory requirement to consult as part of the pre-application stage for NSIP applications, bringing requirements in line with all other planning regimes. This will include removing the requirement for developers to prepare and consult on preliminary environmental information, which currently often leads to applicants duplicating content already required through existing environmental regulation.

Is this a good thing? In my view, the answer is yes.

First, it is unfortunately the case that consultation has been abused in recent years, and used merely as a cudgel to delay projects rather than to foster understanding and better quality mitigation. There are, in fact, examples of submissions on the quality of consultations being copy and pasted. The updates to the statutory guidance last year were helpful in rightfully rebuking those who called for the repeated attempts to force re-consultations.

The issue, though, has been that there is an undercurrent which seeks to conflate the ‘frontloading’ required by the DCO regime, with an excessive number of information requests in the pre-application period. Correcting this inappropriate stance requires a clear signal like the outright removal of these requirements to change cultural practices. The fact that this measure comes after the ballooning of consultation was inevitable given that unfortunate history. 

Second, it is to be expected that (non-statutory) engagement will continue: various policies in National Policy Statements require engagement with statutory bodies and local authorities, and it’s inevitable that engagement will be used by developers as a mechanism to reduce consenting risks. More importantly, if what we care about is local input, then it is odd not to consider the 6 month examination as part of the overall calculation. Yes, it’s after an application is submitted, but application changes in response to concerns are frequently promoted and if the views are sufficiently damaging to a project, it would prevent it from obtaining consent.

Additionally, I think the government’s estimate that this could halve the pre-application period is broadly correct, and for complex projects, the saving is greater. In short, what is being removed is not meaningful engagement, but an exercise that has over the years become a check-box exercise abused by objectors and introduced needless delay.

Third, and relatedly, the Government’s view is clear – both expressly in the energy national policy statements, and more broadly in it’s view on wider infrastructure – that the development is literally a critical national priority. If we really think about what that means (i.e., that this development is so urgently required, that in general adverse impacts will not be a reason for refusing consent), then it’s easy to see why a minor to moderate reduction in the quality of applications is acceptable price to pay for these time savings. There has never been a requirement to promote the best scheme in law, and with the added Government policy position that these are critical for growth, energy security, we do not need perfect projects. These schemes, even if they are imperfect in some respects, are still acceptable – that is the natural conclusion of the Government’s stance.

For what it’s worth, I don’t actually think we will see a radical drop in quality and certainly not to the extent that they would not comply with a relevant NPS. The TWAO regime does not contain the statutory consultation provisions, and has a high consenting rate. As noted above, the existing policy tests, and incentives for developers to de-risk mean that meaningful engagement (rather than tick-box PEIRs or objectors brazenly yelling for more information as a mechanism for delaying projects) will ensure acceptable schemes continue to come forward.

In the past, I have highlighted that this could only be done by a Government which commanded a large majority given some political constraints. Well, here we are. The government is going to be challenged on this, and it will need to hold firm as this is likely to be the most seismic change in the operation of the DCO regime. Godspeed, and I think the officials behind this deserve high praise. Nobody could have predicted in 2010 the enhanced need for energy security because of Putin’s invasion of Ukraine over a decade later, but with hindsight the delay and sclerosis of the regime has had a detrimental impact. We don’t know what the world will look like in 2035, but it is inevitable, if not likely, that all forms of infrastructure will help us weather a future storm and drive growth - let's avoid saying that hindsight is a wonderful thing. 

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