The long awaited (and lengthy) consultation on the detail needed for the Infrastructure (Wales) Act 2024 (the Act) to become operational was published last month.  Having taken some time to digest it and write and deliver a presentation I wanted to encourage anyone involved in large scale energy and infrastructure projects to read and respond.  The consultation is open until the 13 December 2024.  

While the detail is welcome we understand that it is unlikely that the proposed Regulations which will be based on this consultation will be consulted upon and so it is important that any concerns are raised now to enable those tasked with drafting the Regulations can consider them before they are made.  

One of the first considerations for all those involved in consenting projects to understand is the transitional provisions.  The Regulations will set out the transitional provisions which are designed to ensure a smooth transition for ongoing projects and to prevent any legal or procedural gaps during the changeover period.  The fact that the Act will replace a number of regimes brings with it challenges.  

Transitional Provisions are necessary for applications being made under the Town and Country Planning Act, the Electricity Act, the Harbours Act, the Transport and Works Act and the Highways Act. Chapter 2 of the consultation document sets out what these are proposed to be - broadly these relate to the publication of proposed applications.  The transitional provisions for the DNS regime are already set out in the Act.

The consultation also seeks to provide an indication of work which will need to be undertaken by projects to be able to transition to the new regime should they need/wish to.  By it's very nature this is going to be an area where applicants are going to need to give careful consideration if they want or need this flexibility. It is also worth noting that whether any pre-application consultation will be valid or acceptable is at the discretion of the Welsh Ministers. 

When it comes to the Environmental Impact Assessments, this is anticipated to stay substantially the same, and (it is likely that) previous screening/scoping opinion directions will be able to be transferred over to the new regime. Where consultation has happened with organisations, it will be up to them whether the advice can carry over to the new regime. It is suggested that this will be a simple process which just decides whether the advice is still relevant, and they can add advice where needed. The consultation confirms that SIPs will be governed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

The transitional provisions of I(W)A 2024 aim to provide clarity and continuity during the transition to a new environmental legislative framework. However, they also highlight several areas that require careful consideration to ensure that the transition is equitable and does not hinder the progress of ongoing and future projects