It has been several years since its birth, but only now are we seeing the new fast-trackplanning process for major infrastructure projects produce results. Introduced by the Planning Act 2008, the approval system for nationally significant infrastructure projects (NSIPs) came into life between 2010 and 2011. Only in the past nine months, however, have any projects actually come through the pipeline and nine decisions have been made about whether to grant a development consent order.
The NSIP regime was created by the previous Labour government to speed up the planning process for major projects considered to be of national importance. Previously, such schemes were decided by public inquiries and could take years to receive consent. Heathrow Airport’s Terminal 5 took eight years to be approved, including a four-year inquiry.
The new process aims to take a maximum of 18 months between application acceptance and a decision being issued, but this excludes a potentially lengthy pre-application process, which can take between one and three years, according to the inspectorate.
The regime’s first big shake-up came just over a year ago, when the Planning Inspectorate (PINS) absorbed the old Infrastructure Planning Commission (IPC), the independent body set up by Labour to deal with and decide applications, into a new major infrastructure team.
So far, 29 projects have been accepted for examination under the NSIP system. A further 60 projects are at the pre-application stage, meaning they have been submitted but not yet accepted for examination, while an additional 19 applications that were submitted have been withdrawn by the developer. The majority of accepted applications are either energy or transport schemes (16 and 10 respectively).
The first of the nine projects to come through the process was Rookery South energy-from-waste generator station in Bedfordshire, approved by the IPC in October 2011. But, following objections to the compulsory purchase of some land, consent was postponed during a lengthy Special Parliamentary Procedure process (see panel) and was not finally granted until March.
Since last September, there have been eight more decisions. Eight of the nine received the green light from the relevant secretary of state. The one project that was refused, an underground gas storage facility in Preesall, Lancashire, was actually recommended for approval by PINS, but the government disagreed.
So what is the verdict on the new system so far? Mark Southgate, the director of major applications and plans at PINS, argues that it is working well. He says the system has largely met its stated aim to “create certainty around timescales”, with all the decisions being made on time apart from one, on a proposed marine energy park in Humberside, which has been delayed.
Lawyers in the field are also positive. Michael Humphries QC, of Francis Taylor Building and treasurer of interest group the National Infrastructure Planning Association (NIPA), says the system “is working well”. He picks out its stricter timescales and ability to grant multiple consents, alongside planning permission, as key improvements on the previous system.
He also says the NSIP system’s introduction of national policy statements (NPS), which outline government support for certain types of major developments and remove the need to establish this during the application process, are “really useful”. So far, nine out of 12 promised NPSs have been published, the most recent one, on hazardous waste, earlier this month.
Angus Walker, a partner at Bircham Dyson Bell, and a NIPA member and adviser, says the predominantly written examination process, as opposed to public inquiry hearings, “seems to be working”. The inspector submits a series of questions to the parties involved, which allows the inspectorate “to be more proactive in highlighting issues” and creates “a more rigorous process”, says Walker.
Mike Gallimore, head of planning at Hogan Lovells, says the speedier process is “good”, but raises a concern about the tighter timescales. He says: “There is a danger of the process being too timetable-driven; a risk of examinations being too superficial without drilling down into the detail.” But Southgate says: “The inspectorate holds the quality of decisions incredibly highly. We want a sound decision at the end of the process and we will put the resources in to do that.”
Gallimore’s colleague Claire Dutch, a planning partner at Hogan Lovells, also strikes a note of caution. She says it is “too early to tell” whether the new process has actually speeded up the system, and adds that the pre-application consultation requirements for applicants “seem somewhat laborious”. Tim Pugh, a planning and environment partner at Berwin Leighton Paisner, agrees that there is a “big bureaucracy” pre-application that takes time to go through. But he says the system will improve through practice: “It’s a new process and people are getting used to it. It should be allowed to bed in. The worst thing now would be wholesale change to the process, which would, at best, unnerve people prepared to make major investment in the infrastructure of this country.”
Southgate says further “fundamental changes” are unlikely before the next election in 2015. Following the recent changes brought about by the Growth Act (see panel), he says there will be a review of the NSIP system next year. But he adds: “We are probably looking more at tweaks to the existing process.”
One issue Southgate raises is with the size of applications. He points out that the recent Thames Tunnel application, the largest yet, has 50,000 pages. He says: “There’s a lot of paper in the system. People need to focus on what’s absolutely required for the examination. Don’t throw the kitchen sink at it.”
The extensive documentation reflects some applicants’ caution about the process, says Humphries, which is prompted partly by a fear of legal challenge. And with five judicial review applications in the past month, relating to four NSIP decisions, it is a real danger. Challenges have been made to the Heysham to M6 motorway link road, the Rookery South energy-from-waste generator, the Preesall gas storage facility, and Hinkley Point C nuclear power station, which faces two of them.
Experts agree there are likely to be more in future. Walker says: “Most controversial projects will inevitably be challenged. And these big infrastructure projects tend to be at the more controversial end of the scale.” Southgate says: “The only means of appeal (under the NSIP system) is by judicial review, so that will be exercised. This is a new system and people are testing the law.”
But what do those promoting schemes that have come through the process think about it? Two wind farms, the Kentish Flats Extension off the Kent coast and Brechta Forest West in Wales, were approved in February and March respectively.
A spokesman for Vattenfall, the applicant for the offshore scheme, says the experience was “generally positive”. The statutory timeline is “enormously helpful to investor confidence”, he says. “Too many wind farm proposals in the past have faced planning delays.” And the pre-application consultation requirement, early in the process, is “helpful”. However, “a little more flexibility” in the level of detail required for a proposal in the earlier stages of the process would be helpful, he adds.
Alex Blake, a planning specialist at RWE npower renewables – the developer of the Welsh scheme – says working with the new system “has been daunting at times”, but not as complex as sometimes thought. “The process has been professionally rewarding and has delivered a decision in a timely manner,” he adds. The fixed timetable and the “clear policy framework” provided by the NPS were particularly valuable, Blake says. A key lesson for promoters is the need to prepare thoroughly and to resource their team appropriately. “The examination is very thorough and requires developers to respond to technical questions, often at very short notice,” he says.
Further advice comes from Southgate. Applicants should be thorough at the pre-application stage, he says, particularly with consultation, to reduce the risk of rejection. He adds: “This is a front-loaded process. The need to engage meaningfully pre- application is really important. Doing it properly will result in a smoother process.”
Recent and proposed changes
Recent and proposed changes to the Nationally Significant Infrastructure Project (NSIP) process
Special Parliamentary Procedure (SPP)
SPP allows certain landowners to object to the compulsory purchase of their property. These objections are then considered by a joint select committee of both Houses of Parliament, a process that can take more than a year. A measure in the Growth and Infrastructure Act removed the ability of councils or statutory undertakers, such as power companies, to use SPP. Instead, the safeguard will be reserved for land that has historically been subject to special levels of protection, such as allotments, common land and National Trust land.
New additions to the NSIP regime
The Growth Act also sets out plans for major business and commercial developments to be considered under the NSIP process. At the moment, large energy, transport, waste and waste water schemes over a certain size must be considered by PINS under the fast-track route. But new regulations produced by the Act will allow promoters of projects including offices, factories, warehouses and conference centres, with plans to include more than 40,000 square metres of floorspace, to choose the NSIP process if they wish. The department confirmed the measures last week, but they will not come into force until regulations are published later in the year.
Thresholds for road, rail and electric line projects
Earlier this month, the Department for Transport said it would introduce thresholds to exclude smaller road and rail schemes from the NSIP process. It said only new railway lines of more than 2km and roads bigger than 15 hectares in area would be decided by PINS. With trunk roads where the speed limit is 50mph or greater, the threshold would be 12.5 hectares. In April, an order introducing a new threshold for electric power lines came into force, restricting the NSIP process to lines longer than 2km.
The Consents Service Unit
A PINS free advice service was launched in April for infrastructure scheme promoters on various consents outside the Planning Act 2008 that they might need, such as environmental and conservation consents.
Review of NSIP regime
A DCLG review of the major infrastructure planning process is due to take place next year. Mark Southgate, PINS director of major applications and plans, said it would look at how to improve the system and is “likely to be around procedures”, rather than a major shake-up.