It’s here! What does the NSIP action plan say?

The Government’s eagerly awaited policy paper “National Significant Infrastructure: action plan for reforms to the planning process” has landed today. We have set out a summary of the key takeaways below.

The paper is in response to the demand for the NSIP consenting process, now over a decade old, to be reformed to respond to the growing number and complexity of schemes, to ensure that it is faster and greener, as set out in the National Infrastructure Strategy 2020 and the British Energy Security Strategy 2022, and to respond to urgent challenges on transport, energy security, water and wastewater and climate change. Concerns with how the existing system operates include an increase of 65% in the length of time for a case to reach decision from 2012 to 2021, multiple extensions of time being granted at the decision stage due to complex issues, and an increase in the volume of documentation and the quashing of four DCOs in 2021.

The action plan highlights the changes which are currently underway:

• To assist local authorities, an Innovation and Capacity Fund was awarded to 10 local authorities in 2022 and a Local Authority Working Group has been set up to explore more efficient use of resources;
• The Government has proposed amendments to the Levelling Up and Regeneration Bill (LURB) to enable the Secretary of State to set shorter statutory timeframes for examination, introduce regulations for decision making on non-material changes and enable statutory consultees’ costs to be covered;
• The National Infrastructure Commission is conducting a study on the role of the NPSs.

In addition, there are five proposed reforms areas:

1. Setting a clear strategic direction

The aim is to ensure the Government sets out and maintains a robust and up-to-date policy framework across the suite of NPSs. This will involve the Secretaries of State reviewing the existing NPSs to provide a clear and up-to-date need case for infrastructure and Government departments to deliver comprehensive policy coverage and monitor the relevance, effectiveness in practice and currency of their NPSs. This will be used to inform decisions on whether to review the NPSs, at the discretion of the relevant Secretary of State;

Currently, the following NPSs are expected to be designated: new Water Resources NPS in Q1 2023, updated NPS Energy EN-1 to EN-5 in Q2 2023, updated National Networks NPS in 2023 and a new Nuclear Power Generation NPS EN-7 in early 2025 as well as a new Nuclear Fusion NPS.

2. Bringing forward operational reforms to support faster consenting 

The application process will be streamlined and support to applicants strengthened by the following changes:

• PINS will introduce a new application service portal;
• The process for statutory consultees to engage in the consenting process will be streamlined with the introduction of service level agreements between applicants and consultees;
• More proportionate examinations for less complex projects will be delivered by reviewing the examination procedure rules including the role of relevant and written representations, and through digitisation of the examination process;
• The implementation of DCOs will be sped up by reviewing the process of material and non-material change applications and digitalising the certification of documents;
• An enhanced pre-application service will be available, at a cost, to enable more expert support to be provided to support the quality of applications and enable key project issues to be identified early in the process;
• Updated DLUHC guidance will provide clarity on the standard of application required to comply with the ‘acceptance’ tests;
• The new fast track consenting timeframe is supported by the LURB and a consultation on this is expected in Spring 2023.

The Government will develop a ‘pilots and early adopter programme’ to trial aspects of the reforms, including the fast track proposals, and invites developers whose projects are at an early stage of pre-application to take part in this. It will also continue to work with sectors such as offshore wind and transmission networks which are not considered suitable for the fast track programme.

3. Realising better outcomes for the environment 

This section highlights the issues with the current EIA system with assessments being too long and technical, prone to legal challenge, repetitive and ineffective. The paper runs through the provisions in the LURB to secure the powers introduce Environmental Outcomes Reports and consultations and ongoing user research will take place during the passage of the Bill and following royal assent to inform secondary legislation.

In addition, reference is made to other initiatives:

• Defra is reviewing the protected sites and species policy framework for terrestrial and marine environments. The Nature Recovery Green Paper was published in March 2022, setting out proposals to reform the existing system of site and species protections;
• Biodiversity net gain (BNG) requirements for all (terrestrial and intertidal) NSIP projects will be in place from November 2025 (presumably this means applications submitted from the trigger date) and an approach for marine net gain will be developed. Please see our blog on the response to the BNG consultation published earlier this week for more details;
• A new Offshore Wind Environmental Improvement Package will accelerate the delivery of new offshore wind infrastructure. Defra is developing a library of strategic compensation measures where impacts on Marine Protected Areas cannot be avoided, reduced or mitigated and IROPI considerations apply and is also seeking powers through the Energy Bill to revise the HRA process. The Government will work with Defra to implement the Marine Spatial Prioritisation Programme and ongoing marine planning reform projects to ensure opportunities to improve the NSIP process are maximised.

4. Recognising the role of local authorities and strengthening community engagement with NSIPs

• Funding available to local authorities to support NSIP work will be increased through the Local Authority Innovation and Capacity fund and further funding will be provided for projects that support local authorities to engage earlier and more effectively with the NSIP process;
• New guidance on community engagement expectations will be provided and developers will be expected to demonstrate how the views of the affected communities have been considered and the resultant measures as part of the DCO application;
• The Government is exploring how communities engage in and benefit from hosting infrastructure for which there is a national need. The Department for Energy Security and Net Zero will shortly consult on measures to ensure communities are benefiting appropriately from hosting electricity transmission network infrastructure. These measures will be separate to the planning process and will not constitute an ‘important and relevant matter’ in relation to DCO decision making.

5. Improving system-wide capacity and capability

A number of measures being introduced to address this including workforce planning, improved online guidance, ongoing staff training and a new risk and opportunity approach to cases and further digitisation. The Government will support PINS and statutory consultees to move towards full and proportionate cost recovery for the NSIP consenting system. Cost recovery will be accompanied by performance monitoring arrangements such as key performance indicators so that it encourages continuous improvement in the quality of services.

Key dates from the action plan to note are:

• Spring 2023: consultations expected on streamlining the examination process, fast track consenting process (including identification of suitable projects) and full cost recovery;
• September 2023: pilot for key aspects of the reforms including new fast track consenting process to take place;
• Spring 2024: key regulatory and guidance changes to be introduced including recovery of proportionate costs by PINS and consultees;
• From 2025: EORs to be introduced and a more digital and agile PINS will be unveiled.

If you have any queries on how these reforms are likely to impact projects you are working on, please do let us know.

Improving energy security, achieving net zero and delivering the transport connectivity, water and waste management facilities this country needs demands investment in infrastructure. We must have a planning system fit to deliver it, while keeping communities and the environment at the heart of decision-making.

https://www.gov.uk/government/publications/nationally-significant-infrastructure-projects-nsip-reforms-action-plan/nationally-significant-infrastructure-action-plan-for-reforms-to-the-planning-process