Infrastructure Planning Blog

This week’s entry provides insight on some of the other notable amendments to the Bill tabled since it was introduced in March.

Land access for surveys

The Government has tabled amendments to section 53 of the 2008 Act, which is the section that sets out the process for entering and surveying land in connection with Development Consent Orders (DCO).  The amendments would remove the requirement for authorisation to be given by the Secretary of State before entry and allow the use of force if authorised by a warrant issued by a justice of the peace.  Entry could instead be taken by an “authorised person”, that is a person authorised in writing to exercise the power on behalf of (a) a person who has made an application for a DCO which has been accepted by the Secretary of State; (b) a person who proposes to make an application for a DCO; or (c) a person who has been granted the benefit of a DCO.

There has long been a consensus that the section 53 process is cumbersome and time consuming, consequently discouraging applicants from using it.  In our experience, many applicants favour the right to enter and survey land found in section 172 of the Housing and Planning Act 2016, which is not subject to the Secretary of State’s prior authorisation.  By removing the Secretary of State from the process, the Bill therefore brings section 53 into much closer alignment with section 172 of the 2016 Act.  This is a sensible outcome.  It will be interesting to see whether there is an upturn in the use of section 53 in the light of these changes. It’s possible the existence of section 172 will surely limit the effect of the changes to some degree.

It is useful to go back in time to consider a refusal of a section 53 authorisation:

In 2020, Arora, promoters of the alternative Heathrow West project, requested authority to survey land. In short, the applicant had not obtained a section 35 direction and the Inspectorate ‘consider[ed] that the Applicant has not demonstrated how the Proposed Development by itself achieves the relevant passenger increases required by s23 of the PA2008 to be considered a NSIP in its own right’. The argument that the project could get consent to be an NSIP under s35, although hadn’t yet, did not succeed either.

Would the outcome be the same today? Further clarification would be welcome in respect of the intent of (b) above, regarding the right of entry of a developer who simply proposes to make an application for a DCO.  Logically, those authorised to use section 53 should only be those developers who are serious about making an application but still early enough in a pre-application to permit potentially intrusive surveys that will be critical in deciding whether to proceed (including prior to a section 35 application). For conventional DCO applications, that could be tied to section 46 (on which, see below). For proto-section 35 promoters, perhaps this could be supplemented by reasonable and proportionate information that there is, in fact, a “real” project.  

It’s no longer a material(ity) world

The Government has also tabled a number of changes to Schedule 6 to the 2008 Act, which deal with changes to, and revocation of, made development consent orders.  Readers may be familiar with the current distinction drawn between material and non-material changes depending on the scale of the changes, with each subject to their own distinct processes.  The key change is to repeal the procedure for making non-material changes that is currently in paragraph 2 of Schedule 6 to that Act.  As a result, there will be a single track for changes to made DCOs.

This amendment is welcome to the degree that it will remove complexity in the procedures applicable to DCO changes.  It would be useful in due course for the Government to clarify whether the examination of a change application will be tailored to the needs of the case, with comparatively straightforward change applications able to move through the process quickly.

I have not seen any mention of consequential amendments to the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011, which are currently littered with references to non-material change applications.  Presumably, changes to those regulations will be brought forward too.

Energy National Policy Statements (NPS) reviews

Finally, the Government this week launched a consultation on proposed changes to the energy NPS which can be found here.  The consultation closes on 29 May 2025.  We will cover some of those changes in next week’s blog.

The changes appear to be relatively modest (watch this space for a detailed rundown), except so far as the specific policy tests for onshore wind are concerned.  There is a (significant) nod to the role of specific technologies in delivering the Clean Power 2030 Action Plan, which was published in December 2024 and is striving towards clean sources producing at least 95% of Great Britain’s generation by 2030.

The revised NPSs make several references to statutory pre-application consultation, which will now need to catch up with the amendments to the Bill.

Statutory consultation (again)

In last week’s edition, my colleague Mustafa Latif-Aramesh commented on the proposed removal of statutory consultation for NSIPs applications under the Planning Act 2008.

The amendments to the Planning and Infrastructure Bill (“the Bill”) giving effect to that proposal have now been tabled by the Government (see here e.g., on page 30).  Whilst the measure’s impact will hinge to some degree on the terms of the statutory guidance planned to be published for consultation in the summer, which will clarify what the Secretary of State considers to be best practice in terms of the steps an applicant might take in relation to a proposed application in readiness for submitting an application. This is a significant, welcome and necessary change to the regime. No doubt the Government is going to avoid creating an avenue to give rise to the excesses of the process which have given rise to the need for this reform.

The Government has tabled a number of amendments to the Bill necessary to give effect to the removal of statutory consultation.  References to sections 42, 45, 47, 49, consultation reports and PEIRs have disappeared. in a blaze of smoke.

One change worth mentioning in particular is to section 46, which is the duty to notify the Secretary of State (and, as proposed to be amended, the local authority) of a proposed application.  Currently, an applicant complies with section 46 by supplying the consultation materials on or before commencing consultation under section 42.  Because section 42 will not exist anymore, this requirement needs to change.  New clause 45 of the Bill therefore confirms that an applicant instead will need to provide (a) its name and address; (b) a statement that it intends to apply for a DCO; (c) a statement about why development consent is required for the project; and (d) a summary of the proposed application, specifying the location or route of the proposed development. The Bill also states that an applicant must provide such further information as may be prescribed in regulations.  Clearly, it is not the intention that this leads to lots of additional information being required by the back door.

It is hoped that the Inspectorate will, in due course, update their advice note relating to changes during examination to remove the requirements relating to consultation. It would seem inconsistent to remove statutory consultation for schemes at  the pre-application stage, while still requiring consultation for relatively minor project changes. The same also applies to the procedure for amending DCOs.