New Infrastructure Planning Rules and Regulations set to come into force

They amend and update the consenting process for nationally significant infrastructure projects (‘NSIPs’) and contain some important changes that promoters should be aware of. We summarise the main changes in this article.

The Infrastructure Planning (Examination Procedure) (Amendment) Rules 2024

These Rules amend some of the timings in the Infrastructure Planning (Examination Procedure) Rules 2010 to support the aim of expediting the examination process. Rule 3 removes the minimum period of 21 days that an examining authority must allow for the submission of written representations by interested parties. Rule 4 similarly removes the minimum notice periods of 21 days for hearings.

The notice period must instead be ‘reasonable’. In a welcome move towards modernisation, Rule 4 also allows applicants to publish hearing notices online rather than in local newspapers, while Rule 5 allows applicants to serve notices and other documents electronically without having to first obtain consent from the recipients.

These changes will come into force on 30 April 2024 and will apply to DCO applications submitted after that date.

The Infrastructure Planning (Miscellaneous Provisions) Regulations 2024

These Regulations also make various welcome changes to the process. Regulation 2 amends the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 to remove the prohibition on someone who has given s.51 advice on a proposed DCO application from subsequently being appointed as the examining authority for that application. Regulation 2 also updates the list of prescribed consultees in Schedule 1 to the 2009 Regulations.

Regulation 3 amends the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 to require relevant representation registration forms to include the principal submissions which the person proposes to make in respect of the DCO application and, where practicable, the full particulars of the case. This will allow promoters to see fuller details of the representations at a much earlier stage.

These changes will also come into force on 30 April 2024.

The Infrastructure Planning (Fees) (Amendment) Regulations 2024

These are in our opinion the most significant of the three sets of Rules and Regulations. In summary they provide for the recovery of costs by the Secretary of State / Planning Inspectorate during the pre-application stage. They also provide for specified public authorities to charge for their pre-application services. This is part of the well-publicised proposals for wider reform of the NSIP process. The amendments here are more complex, but in summary:

• The SoS / PINS may charge £2,300 for each ‘relevant day’, defined as a day on which it provides pre-application services. Pre-application services are defined as services provided to the applicant by the Secretary of State in relation to a proposed application and include the services listed in Schedule 1. The Schedule 1 list includes things such as giving s.51 advice; EIA services; and more broadly “services provided to the applicant in relation to any matters which the Secretary of State thinks may be both important and relevant to [their] decision”.
• The public authorities listed in Schedule 2 may charge the applicant for the provision of ‘relevant services’, broadly defined as any advice, information or other assistance (including a consultation response) provided in connection with a DCO application. The public authorities listed in Schedule 2 are the Environment Agency, Natural England, Historic England, National Highways, the Coal Authority, the Health and Safety Executive, the Marine Management Organisation and Natural Resources Wales. Unlike with PINS / the SoS the fees these authorities are permitted to charge are not specified, but Regulation 7 does provide parameters for the fees, including that they must be in accordance with a statement published on the relevant authority’s website which sets them out (or at least how they are to be calculated). They must not exceed the costs reasonably incurred by the authority in providing the relevant services and the authority must notify the applicant of the estimated fees before providing the services.

These changes come into force on 1 April 2024. They will undoubtedly make the process more expensive for promoters than it already is. Whether they are changes for the better from the promoter’s perspective, by enabling the SoS / PINS and public authorities to better resource DCO applications, remains to be seen.

It is widely acknowledged that some organisations are struggling with resourcing at present, particularly given the number of DCO applications that are at the pre-application stage, and this can lead to inefficiencies and delays to the progress of applications. It is therefore to be hoped that these changes will indeed lead to improved resourcing, enabling authorities to provide effective and timely advice, input and support.

If you would like more information about any aspect of the NSIP process, please contact Katherine Evans or John Arthur.