Following on from our Legal Update NSIP Consenting Process Reforms – what does the Consultation cover? (burges-salmon.com) on the nationally significant infrastructure project (“NSIP”) reform consultation (the “Consultation”), my colleague Olivia Heininger has summarised the volume and range of guidance which is currently proposed in relation to the NSIP reforms. Overall it is a significant package of new guidance which is expected to emerge over the next 6 months or so as the Government considers the responses to the Consultation.
Pre-application and application
To support the enhanced pre-application and consultation process existing guidance will be updated to:
- stipulate how the Planning Inspectorate (“PINS”) will provide merits advice on potential examination issues and whether an application is suitable to be accepted;
- clarify the expectations around pre-application consultation with a focus on ensuring it is proportionate and meaningful. This will include guidance around the use of independent community liaison chairs / forums as a tool for engaging with the public;
- include more detail on the expected content of applications and certain key documents. For example, detail will be provided on how draft development consent orders (“DCOs”) should be prepared including standardising clause drafting; and
- encourage applicants to publish documents on their own websites following submission to PINS.
A new ‘adequacy of consultation’ milestone is proposed for the pre-application stage and the updated guidance will provide the criteria for assessing whether this milestone has been reached.
The ‘Early Adopters’ pilot scheme (7 applications currently in the system) has already introduced some of the reform areas relating to the pre-application process. For example, a new advice log, to be maintained by PINS as a record of the advice given through pre-application, is on the list of documents for Early Adopters.
Examination and the Fast Track Route
The proposal to introduce a Fast-Track Examination for certain applications and the general emphasis on more effective use of the Examination period are cornerstones of the proposed reforms as the Consultation recognised the management of examination issues can lead to ineffective use of time. For example, the written representations stage of the examination can be a factor in delaying the consideration of key material. Updates to existing guidance will encourage interested parties to submit their full representations at the relevant representations stage (prior to the examination opening). Other guidance updates will be developed to promote the early identification of potential examination issues including strengthening the role of the list of principal issues prepared by PINS and the submission of ‘principal areas of disagreement’ earlier in the process.
In relation to the new Fast-Track examination process, new guidance will set out the criteria which applications have to satisfy in order to be eligible for a Fast-Track examination and how applicants can prepare material to demonstrate eligibility. For the examination itself, new guidance will set out how the shorter timeframes will operate and what how Fast-Track examinations can be amended to deal with changes in circumstances (that may otherwise require an extension to the examination).
These reforms will require a large amount of guidance to be produced alongside associated legislative changes and this reform area is likely to result in the most substantial changes.
To support the speeding up of the process of amending DCOs once they have been granted, new guidance will provide advice on the procedure for assessing the materiality of a change and otherwise clarifying how applicants, stakeholders and Secretary of State can work together to speed up the process.
This is likely to be an important area of new guidance given the current delays in post-consent changes: applications for non-material changes are taking between 2 and 16 months to determine and much of that time is taken up considering the materiality of changes.
Resourcing and Performance
Another key focus of the consultation is changes to support better resourcing of PINS and stakeholders in the NSIP process as well as the costs to the applicant of supporting that process. Guidance will be published on the fee structure for pre-application advice and post-consent DCO changes which will provide applicants with greater clarity on what those costs will be and what they will cover.
In a related area, guidance will be drawn up to cover the principles for using ‘planning performance agreements’ (“PPAs”) through which applicants will cover the costs incurred by local authorities in engaging with the relevant application.
A third means by which applicants will be expected to support engagement of consultees is through a new charging system to benefit statutory consultees. Guidance will be prepared to indicate what services can be charged for which include funding of participation in examinations. These charging systems will be developed by each consultee individually.
Applicants are therefore likely to be paying more, possibly substantially more, to take infrastructure projects through the NSIP process. Look out for our next blog which considers the timelines for reforms proposed under the Consultation.