Infrastructure Planning Blog

Today’s entry looks at the implementation plans for the Planning and Infrastructure Act 2025, DCO delays, and the publication of a recommendation report relating to a withdrawn DCO project.

PIA not MIA

The Government has published an update on its implementation plans for the Planning and Infrastructure Act 2025. The biggest takeaway is the confirmation that guidance covering pre-application, acceptance, and content of a DCO application will be published “Spring to Summer 2026”.  That target is also when the secondary legislation covering the power to disapply the requirement for development consent (i.e., the “opt-out”), and rights of entry to land for surveys measure will be laid.

The secondary legislation relating to material/non-material changes to DCOs (and, specifically, the removal of the distinction between material/non-material changes) is not due until 2027. Interestingly, the updated guidance on pre-examination will “reflect the increased importance of the Examining Authority’s Initial Assessment of Principal Issues (IAPI)”. I’ve always thought the IAPI is a bit like the Holy Roman Empire (neither Holy, nor Roman), in that it does not usually present an assessment of any principal issues, and is usually generic and never referred to again. It should be more than an initial assessment, and it should highlight resolved matters and not just unresolved issues so its welcome this is being updated.

The Government has also said that it will be laying secondary legislation which will enable cost-recovery for local authorities. I have some strong reservations about cost recovery, and think it can be used to perversely to increase costs and protract disagreements. Previous Government-commissioned reports had warned against this (see, for example, paragraph 490 here).  It’s hoped that any secondary legislation will try to limit its potential use to what is strictly required.

Meanwhile, a separate document relevant to the conventional planning regime published by Government confirms that for “Applications relating to land owned or leased by the Nuclear Decommissioning Authority (or one of its subsidiaries) [and] Applications relating to nuclear fuel cycle facilities, including facilities for uranium conversion, enrichment, deconversion, nuclear fuel manufacture, or associated production processes” that the “consultation direction” applies. The consultation direction requires a local planning authority to consult the Secretary of State where local planning authorities are minded to refuse planning permission.

Purdah she wrote

The Secretary of State has announced three delays to offshore wind-related projects this week:

• North Falls Offshore Wind has been delayed from 28 April to 14 May
• Morgan and Morecambe Offshore Wind onshore transmission assets has been delayed from 29 April to 14 May
• Dogger Bank South Offshore Wind has been delayed from 30 April to 14 May

The Written Ministerial Statement states that the delay is because “current statutory dates for these three cases are within the pre-election period for local elections in England”. The guidance on the pre-election period (formerly known as purdah) states that particular care should be taken where there is a specific local or geographical dimension to an announcement; where an announcement could have a particular impact on an area or areas where elections are being held; and where an announcement relates to matters which are likely to be raised in election campaigns.

This line of thought has not always been followed in pre-election periods, but it’s worth considering the case law on this point. The starting point is that this convention is “not a principle of law... does not provide ministers with a defence to proceedings in private or public law [and..] it is in no sense binding on the courts" and it, instead, "is convention" (per R (on the application of ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC B12 (Admin)).

I’m aware of only one recent case where the grant of a planning permission was challenged in the pre-election period. In R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 W.L.R. 83), a decision to grant planning permission was made during the pre-election period. The accusation was that the decision was in some way pre-determined, and influenced by wanting to brag about the permission during the election. The Court of Appeal determined the mere fact there was an overlap between the pre-election period, and the grant of permission, was not sufficient to render the decision unlawful.

H2Teeside Revisited

Readers will recall that the promoter of H2Teesside withdrew their application for development consent shortly before the Secretary of State was due to make a decision on the application. The reason for that withdrawal was an unresolvable conflict between the proposed hydrogen project, and data centre proposals put forward by the local development corporation.

The Planning Inspectorate has published the Recommendation Report notwithstanding that withdrawal. The ExA recommended approval for the project. While we’ll never know exactly what the Secretary of State would have decided, it’s worth having a look at some of the issues that arose, particularly in relation to greenhouse gas emissions, as well as the various principles applied in the context of protective provisions negotiations. On the former, unsurprisingly, the well trodden arguments challenging the adequacy of standardised assessments were given very short shrift indeed!

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.