This update has been prepared by Grace Fadden in Burges Salmon's Planning and Compulsory Purchase Team.

A policy paper was published on 26 January 2025 by the Ministry of Housing, Communities & Local Government with proposed primary legislative changes the government wishes to take to streamline the development of critical infrastructure and evolve the system governing Nationally Significant Infrastructure Projects (NSIP). This paper is said to be the first of many, each focusing on a different aspect of planning reform. The focus of this paper is the NSIP regime (although it touches on other consenting regimes), and evolution, not revolution, is the overarching theme of the policy suggestions. To this end, the paper has retained some proposals from the previous Conservative government as well as seeking to extend into other areas and concepts for change.

The paper is driven by the government’s Plan for Change and is part of the wider goal to transition to clean power by 2030, with its introduction setting out a damning list of real-world costs to working people’s lives, from increased bills to risk of drought. 

The key areas of reform brought forward in this paper, being National Policy Statement updates, a more flexible and speedier NSIP process and changes to transport consenting regimes seek to address the biggest barriers and inefficiencies in the system as it currently stands. 

1. National Policy Statements (NPSs)

The proposed reforms reiterate the goal of updating NPSs at least every 5 years and also suggests introducing a more streamlined process for making material amendments to NPSs in between the required 5 year updates.

NPSs are the key policy framework for NSIPs as the Planning Act 2008 requires the SoS to make its decision in accordance with relevant NPSs. As per previous policy papers on this topic, updates to the NPSs are identified as a key means of improving the system. Where there is a clear policy framework it is easier to determine decisions in a clear and consistent manner.

The proposed streamlined process for interim updates will focus on proportionate updates which respond to legislative changes, published government policy and Court decisions. These ‘reflective amendments’ will not be subject to parliamentary scrutiny requirements in the same way that a new NPS would be, but will still receive a level of political oversight due to retaining the requirement for these to be laid in parliament for 21 sitting days. 

2. NSIP Process Reform

With a goal to almost triple the number of infrastructure project decisions made under the previous parliament, changes are certainly needed to speed up NSIP process. Of course, speed isn’t all that matters to developers, who will also want to see changes to the work involved, improvements on costs and more certainty in decisions. In the spirit of ‘evolution not revolution’ the paper states these ideas build on the NSIP Action Plan from 2023, but will go further and faster.

Consultation

One of the most notable suggestions, and likely to be of greatest interest to the industry includes the stripping back of elements of the consultation process and to further align it with other regimes. The focus is on reducing burdens of consultation, whilst ensuring consultation is more effectively delivered. Due to the uncertainty of existing consultation requirements, the paper highlights that average timelines for statutory pre-application have doubled from 14 months in 2013 to 27 months in 2021, noting a tendency for applicants to gold-plate their consultation process to avoid breaching the regulations.

The proposed legislative amendments seek to address all 3 of these problems, focusing on amendments to the acceptance test and more collaborative working at pre-application stage.

A key change suggested is to amend the application acceptance requirements to re-focus on outcome-based judgments. This changes the current Planning Inspectorate obligations from a tick box exercise to one where judgement can be applied to the decision on whether consultation requirements have been met in light of wider infrastructure objectives, guidance and the way in which applicants have responded to advice provided by the Planning Inspectorate at the pre-application stage. Further, Planning Inspectorate could require targeted consultation to take place in the post-acceptance / pre-examination phase to address any matters arising instead of rejecting applications and forcing developers to reconsult.

The second solution is to introduce a duty on all parties (applicants and statutory consultees) to identify and narrow down the areas of disagreement at pre-application stage. This aims to resolve the stand-off between parties before examination stage, freeing up examination time for trickier issues and streamlining the acceptance process whereby the Planning Inspectorate will take account of engagement (or lack thereof). It will be interesting to see how this duty is enforced in practice and what expectations are of the parties in meeting that duty. We can expect this to be covered in more detail at the next stage of policy development.

The paper also suggests revising the contents of consultation reports to focus on themes and issues (rather than line by line responses as is currently common practice), encouraging more concise reporting, with the aim to produce more accessible reports and therefore reduce time spent by applicants on the consultation process.

Finally, the paper suggests removing the requirement to consult Category 3 persons at pre-application stage, with consultation only taking place once the final scope of development is known. The idea being to avoid the burden of consulting with Category 3 interests who may later on be unaffected by the development. This is likely to be a welcome development for applicants.

Post consent changes

The paper includes recommendations more easily facilitate post consent adjustments and corrections to DCOs, with the hope that developers can begin construction of these critical national infrastructure projects earlier. These proposals link wider government initiatives, including the recently published Plan for Change.

First, the paper sets out a vision to encourage a return to DCOs being a ‘one stop shop’ by encouraging use of section 150 of the Planning Act 2008 to roll up separate consents, instead of seeking multiple consents sequentially. The paper notes there could be a longer list of consents or licences which could be ‘deemed’ through the NSIP process but the applicability of that will depend on specifics. It will be interesting to see how statutory consultees respond to this, though the paper notes they will be providing support to both applicants and consenting authorities. This seems the least confidently stated proposal and is clearly an evolving idea, with the paper noting further work is being done. 

Further changes to DCOs are also highlighted in the paper. In the first instance, regarding corrections which are proposed to be done through a 2 week correction window post consent but prior to the legislation being made in law. The second is regarding material and non-material changes post consent. Consideration is being given to removing the distinction between material and non-material changes post-consent which the paper notes leads to time wasted arguing about materiality rather than considering the application on its merits. A single change process could reduce delays and provide certainty to applicants.

Enhancing flexibility in the process

The paper has a significant section on how the NSIP procedure could be applied more flexibly to applications to deliver faster, more effective consenting. It is clear the paper has solar developments in mind when detailing these elements (although others are mentioned). This is an area where the developments often can vary significantly in size but the number of potential issues remains limited.

The paper discusses the potential for alternative consenting routes. The paper addresses the confusion around complex projects, which do not comfortably fall within the categories and thresholds for NSIPs set out under the Planning Act 2008. The paper proposes a new power, similar to those provisions under section 35, for applicants to submit a request to the SoS demonstrating that their project can be downgraded from NSIP process. For instance, in some cases going through the NSIP process involves a disproportionate cost to the complexity of the project even though it meets the NSIP criteria. The criteria for this is yet to be published. 

The paper questions the one size fits all approach of NSIPs across the various sectors. They welcome views on whether the regime can adapt to the specific requirements of these sectors and regions. For example, whether taking an economies of scale approach where there is a cluster of NSIPs within one region by joining Examinations/hearings and requiring developers to co-operate with others in their region around managing cumulative impacts would be suitable. Further, in relation to more complex projects constructed over a large number of different local authorities whether a more strategic and joined up approach can be taken to standardising requirements on developers.

The paper seeks views on whether there should be general powers of flexibility to adjust the consenting process or whether specific changes to the current regime should be introduced to deliver this. This is not to be used to bypass environmental or compulsory acquisition obligations. 

Finally, the government is considering expanding the role of statutory guidance to deliver all of the above changes.

3. Changes to the transport consenting regimes

The need to update other transport consenting regimes is also briefly discussed, recognising that the process of infrastructure delivery needs to be streamlined and more efficient. The following measures are proposed to be introduced: 

• In the Highways Act 1980, measures to enhance the efficiency of road infrastructure delivery. These would include introducing the ability to use temporary possession powers for construction, cost recovery for statutory consultees and local authorities, statutory deadlines for process stages, and the ability to deem planning permission with certain applications. 
• Similarly, the Transport and Works Act 1992 measures would streamline new transport schemes by enabling cost recovery, setting statutory deadlines, including additional authorisations, updating Model Clauses through guidance (which is more flexible than the current legislative approach), and various points of clarification in the legislation.

Concluding remarks

It is pleasing to see that the system is moving towards a more responsive, modern approach, focused on continuous improvement in light of existing challenges. This is certainly preferable to restarting from scratch, if the government is to meet its ambitious targets of 150 NSIPs by the end of Parliament. There are many strong, and significant ideas proposed in this policy paper,  from joint hearings, to sector specific regimes which may have a mixed response from industry. Whilst the paper is prefaced with the ‘evolution not revolution’ phraseology, some of the potential changes could have a radical impact on how critical infrastructure projects are consented. 

These changes are not working in isolation towards the goals set out above; we can also look forward to seeing the publishing of the 10-year Infrastructure Strategy alongside the Spending Review in June and various other policy updates on energy and infrastructure planning which continue to be released from government.