April changes to the NSIP regime

The Department for Levelling up, Housing and Communities issued a consultation at the end of July 2023 on the UK Government's plans to make the NSIP consenting process "better, faster, greener, fairer and more resilient by 2025". This resulted in the Government publishing an NSIP reform action plan in February, and on 6 and 8 of March this year the following secondary legislation was made as part of this: 

• Infrastructure Planning (Fees) (Amendment) Regulations 2024;
• Infrastructure Planning (Examination Procedure) (Amendment) Rules 2024 (SI 2024/317);
• Infrastructure Planning (Miscellaneous Provisions) Regulations 2024.

We have set out what changes each of these statutory instruments will make to the development consent process below and how this will impact on applicants seeking consent.  

Changes to Fees

Section 4 of the Planning Act 2008 enables the Secretary of State to make regulations for the charging of fees by the Planning Inspectorate (PINS) in relation to the performance of any of its functions. The Infrastructure Planning (Fees) Regulations 2010 (2010 Regulations) were introduced to make provision for the payment of fees by an applicant or potential applicant to PINS. 

The Infrastructure Planning (Fees) (Amendment) Regulations 2024 amend the 2010 Regulations in relation to existing fees, reflecting changes in administrative costs and resource requirements, and ensure that fees charged by public authorities are transparent and publicly available, with breakdowns and justifications of fees to be provided where applicable. 

New Regulation 2A allows the Secretary of State to charge for pre-application services to improve it and streamline the examination process by resolving project issues early on. The fee is £2300 per relevant day,  being each day the Secretary of State provides the services. The cost is likely to be higher the more complex  the project is. A new Schedule 1 then lists out the pre-application services which include:

• Giving advice under s51(1);
• Services provided  under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 in relation to the environmental impact assessment process;
• Services provided under section 98 relating to timetabling;
• Services provided which the Secretary of State deems important and relevant to its decision under s104.

Newly created Regulation 12A provides for the payment of fees by an applicant to prescribed public authorities in relation to the provision of relevant services. The purposes of this provision is to provide a legislative basis that enables prescribed public authorities to charge fees to recover costs for a wide range of services relating to NSIP applications and proposed applications across the whole  consenting process from pre-application to post consent. The authorities are listed in Schedule 2 as the Environment Agency, Natural England, Historic Buildings and Monuments Commission for England, National Highways, The Coal Authority, The Health and Safety Executive, Marine Management Organisation and Natural Resources Wales.

These public authorities must publish a statement on their website describing the services in respect of which fees are charged and how much the fees are, which cannot exceed the reasonable costs incurred.  A public authority may withhold provision of services and recover any unpaid fees if payments are not made.  

The Department for Levelling-up, Housing and Communities has also published guidance which the public authorities must have regard to in exercising their functions. 

These amendments will come into force on 1 April 2024. 

Changes to Examination Procedure

The Infrastructure Planning (Examination Procedure) (Amendment) Rules 2024 introduce refinements to the examination process for NSIPs, aiming to streamline procedures and improve effectiveness by amending the Infrastructure Planning (Examination Procedure) Rules 2010 (2010 Rules). The following changes are made: 

• The requirement in Rule 10 of the 2010 Rules for a minimum of 21 days’ notice to be given by the Examining Authority when specifying the date by which a written representation is to be received is removed. It will now be at the discretion of the Examining Authority to adopt a proportionate approach to setting deadlines, with the aim of allowing the Examining Authority to carry out examinations in a shorter period. 
• Rule 13 is amended by removing  minimum notice periods relating to notification of hearings under sections 92(2) (compulsory acquisition hearings) and 93(1) (open-floor hearings) so that Inspectors will have the ability to set deadlines they consider reasonable. It also expands the meaning of “by local advertisement” to include publication on the applicant’s website. 
• The requirement in Rule 22 for consent to be given by the recipient for any representation, notice or other document required or authorised to be sent under any provision of the Rules by electronic transmission is removed. Applicants will be allowed to submit documentation in hard copy or electronically, depending on their preference. 

These new rules come into force on 30 April 2024.

Miscellaneous Provisions 

The Infrastructure Planning (Miscellaneous Provisions) Regulations 2024 amend the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (2009 Regulations) and the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (2015 Regulations). The following changes are made: 

• The provision in the 2009 Regulations prohibiting an appointed person who has been involved in giving advice under section 51 of the Planning Act 2008 from being appointed to a Panel, or as a single appointed person responsible for examining the relevant application, is removed. 
• A new table of prescribed persons is inserted into the 2009 Regulations for the purposes of sections 42(1)(a) (duty to consult) and 56(2) (notifying persons of accepted applications) of the Planning Act 2008.
• The requirement in the 2015 Regulations relating to the relevant representation registration form so that it must include the principal submissions which the person proposes to make in respect of the application is extended. 

These new rules come into force on 30 April 2024 and do not apply to applications made under s37 of the Planning Act 2008 before this date or where applicants have already started to consult under s42. 

Conclusion 

These changes will increase the costs involved in DCO applications but it is hoped that this will be balanced against more effective pre-application discussions, more flexible and proportionate examinations and a more efficient process for post consent changes to DCOs.  Time will tell if these objective are achieved.   It is also worth noting that PINS has recruited and trained two new cohorts of Inspectors and is in the process of recruiting new case team members and specialist support staff.