Infrastructure Planning Blog

Today's entry looks at changes and updates from Natural England and the Environment Agency, and provides a little list of small things that could mean a lot.

Little things that mean a lot

I recently came across a list by former Prime Minister Harold Wilson titled "Little Things That Mean A Lot" which includes erudite things like "the future of the pint," "juggernauts", and the "abolition of hare coursing." It got me thinking: what are the small things that would make a significant difference in the operation of the nationally significant infrastructure project (NSIP) regime? Here's a starter for ten.

1. Detailed Hearing Agendas: if you have worked in the NSIP regime for any period of time, and you see a proposed hearing for '[insert vague word here] matters', your heart probably sinks. Which matters? Which experts do we need to make sure are there? How will interested parties know that the issues they care about most will or will not be raised so that they can take annual leave if necessary? How will statutory bodies know if the hearing will relate to their functions? Providing a clear indication, before detailed agendas are issued, would mean a lot and would probably reduce the overall anxiety in the regime.
2. Robust cost measures: the Planning Act 2008 contains provisions relating to the award of costs. Those provisions are not oft-used, and recent examples of them being invoked have involved allegations that a promoter has behaved unreasonably in the context of withdrawn applications. But, particularly with the use of AI, there has been a deluge of representations involving significant copying and pasting, as well as hallucinations which send examinations off on frolics and generate unnecessary additional questions. A more robust willingness to use the costs regime where parties behave unreasonably might help concentrate minds.
3. Cost recovery guidance: we made our views known on cost recovery here, but guidance on what is reasonable would really assist both developers and local authorities in understanding what can be recovered. Preferably, there would be fairly firm limits on the use of external resources. I am afraid that if these costs are not controlled appropriately, it will be a red cross against the DCO regime being utilised.
4. Consistency in DCO drafting: similar in spirit to the ‘future of the pint’, it would be helpful to see greater consistency in DCO drafting, while retaining appropriate flexibility, particularly where that flexibility enables environmentally better outcomes. Inconsistency, or a lack of flexibility, does not just make drafting more difficult: it can prevent better outcomes. Transport DCOs have, after quite a lot of applications, landed in broadly the right place on this point.
5. Shutting things down: as part of the trials on the Initial Assessment of Principal Issues, it would be great to see a forthright 'closing down' of issues during the examinations. This would involve Examining Authorities saying 'we've heard enough on that, thanks very much.'

None of these require primary legislation. All of these would reduce the complexity, cost and burden for interested parties, promoters and regulators.

Focus

Earlier this month, changes to how Natural England will interface with planning decisions were announced. Natural England will now focus on proposals presenting the greatest risks or opportunities for nature, including complex and strategic cases. The idea is to move away from repeatedly advising on more routine applications where established guidance or upfront advice already exists, allowing Natural England to engage earlier and concentrate its resources on resolving significant environmental issues. Standing advice and guidance will instead play a greater role in helping local planning authorities deal with routine matters.

There is an important limitation for infrastructure practitioners: the legislative change underpinning the new approach, made by the Planning and Infrastructure Act 2025 to Natural England's duty under section 4 of the Natural Environment and Rural Communities Act 2006, applies only to planning casework under the Town and Country Planning Act 1990. In other words, this is not itself a change to Natural England's role in the DCO regime.

Permit me

The Environment Agency updated its guidance on the sometimes-tricky relationship between planning permission and environmental permitting on 19 October. The guidance explains the three different positions the Environment Agency can take where a development also requires an environmental permit, when it may recommend use of its pre-application services and, perhaps most interestingly, when it considers that the planning and permitting applications should be “parallel tracked”. There is also now a specific section dealing with NSIPs.

None of this changes the fundamental separation between the two regimes: planning considers whether the development is an acceptable use of the land, while permitting considers whether the activity can be constructed or operated so as to prevent or minimise environmental impacts. But the updated guidance is a useful reminder for DCO projects that the two processes do not exist in splendid isolation.

Most importantly, it re-emphasises the Gateshead principle that where a matter is controlled under one regulatory regime, a separate one should not seek to duplicate or replicate it. This will be very important for co-located data centres/power generation coming forward. It is not necessary, appropriate or even reasonable to re-impose requirements in respect of impacts which are appropriately controlled elsewhere. In that context, the DCO application should instead demonstrate that the relevant impacts have been appropriately assessed and explain how they will be controlled through the other regulatory regime.

Spatial awareness

The Department for Energy Security and Net Zero has formally given the National Energy System Operator a little more breathing room on the first Strategic Spatial Energy Plan (SSEP). A direction published on 23 October moves the deadline for submitting the first SSEP to the Secretary of State from 31 December 2026 to 31 December 2027. The Government says the change formally reflects the revised timetable announced on 4 December 2025.

The SSEP is an important part of the increasingly strategic approach to planning Britain's energy infrastructure, so the extra year is noteworthy for anyone involved in bringing forward major energy projects. The extension applies only to the first SSEP: Ofgem intends to consult during 2027 on changes to the relevant licences dealing with the timing of subsequent SSEP cycles and related strategic energy planning processes. So, spatial energy planning is still coming, just rather less imminently than the original deadline suggested.

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