As set out in our Legal Update, the Government’s consultation on reforms to the National Significant Infrastructure Project (“NSIP”) consenting process closed in September. However, the NSIP reforms are not the only reforms which are coming forward in the near future which will impact the DCO process so in her second blog below, Olivia Heininger sets out the wider context of the ambitious changes the Government is seeking to make to consenting and the key dates to be aware of.

As detailed in the last blog, the NSIP reforms and guidance associated with those are due to be developed and published in the next six months or so. Given the wide range of reforms, this is an ambitious target.

The First Wave: The Pilot Schemes

The Early Adopters Programme has already been launched with the Planning Inspectorate (“PINS”) announcing the seven projects selected as Early Adopters including two projects Burges Salmon is instructed on, Byers Gill Solar and Five Estuaries Offshore Wind Farm. The focus of this pilot is to trial the enhanced pre-application service and the enhanced management of issues through the examination of an application. Some of the key components include mandatory programme planning, evidence plans for complex assessments, and the use of pre-application principal areas of disagreement summary statements.

The Early Adopters are likely to submit applications over the coming months. The Fast Track pilot, on the other hand, is more uncertain in its timing. The lessons learned from the Early Adopters pilot will soon be emerging for both PINS and applicants, with more to follow when the Fast Track pilot comes forward. PINS have indicated that new services and approaches, informed by the pilots, will be brought forward from Spring 2024 in line with the wider NSIP reforms. Other reforms, including the charging structure for enhanced pre-application consultation due to kick in from the 2024/2025 financial year, will need to be in place to support a change to PINS’ approach.

What else is on the horizon?

Just the small matters of Biodiversity Net Gain (“BNG”) and Environmental Outcome Reports to consider. BNG has been on the agenda for a number of years now with a requirement for NSIPs to demonstrate BNG initially due to be introduced in November 2025. However, uncertainty was raised earlier this week with the BBC noting that there would be delays to the implementation of BNG.

A joint statement was published by DLUHC and DEFRA on 27 September with the updated timetable. Although the implementation of BNG has been delayed from November 2023 to January 2024 for TCPA projects, the statement retains the April 2024 introduction date for small sites and November 2025 implementation date for NSIPs. The necessary legislation required to bring the new rules into force will be laid in November 2023 and the intention is for all guidance and Regulations to be published by the end of November, including: the statutory biodiversity metric, the draft biodiversity gain plan template, the habitat management and monitoring plan template, and a package of BNG guidance setting out “further advice for landowners, developers, and local planning authorities around their role and responsibilities in delivering mandatory biodiversity net gain”.

If these timelines are maintained for BNG, 2025 will be a big year as the new Environmental Outcome Reports (“EORs”) are also due to be phased in from 2025. EORs are the proposed replacement for Environmental Statements. Under the new framework, relevant plans and projects will use the assessment process to demonstrate delivery towards identified environmental outcomes. The reforms are contained within the Levelling Up and Regeneration Bill which the Government is hoping will achieve Royal Assent this year with associated guidance to follow.

Updated NPSs have been and are due to be published from 2023 to 2025, including most recently the water NPS which was designated on 18 September 2023 with EN-1 to EN-5 all waiting to be updated following the Government’s consultation earlier this year.

The years 2024 and 2025, if timescales progress as planned, are therefore due to see very significant changes to a number of key components of the NSIP consenting process. Our next blog in the series will consider how these changes will be supported by proposals targeting resourcing constraints.