962: How ambitious are the NSIP reforms? Moving from Jubilee to Platinum

Today’s entry reports on the proposals to speed up the delivery of Nationally Significant Infrastructure Projects (NSIPs) and looks back at the Jubilee Line Extension.

Faster, better, stronger?

The Department for Levelling Up, Housing and Communities have published a 10 page policy paper on how the Government proposes to speed up the delivery of infrastructure projects. Here are a few points to note.

First, the policy confirms there will be a power to allow for shorter examinations. It will be for the relevant department Secretary of State to decide when to exercise this power. This builds on the announcement in the British Energy Security Strategy which indicated a shorter consenting periods for offshore wind projects only. It’s to be welcomed that this now applies to any type of NSIP, and that it’s the Secretary of State for the relevant department who will make the decisions, but it will be interesting to see the variation / consistency in each department approving the shorter periods.

Its also not quite clear how this will be implemented: when will the decision on short vs standard examination be made for example? If the decision is made after acceptance, how will the Planning Inspectorate know whether they should be considering whether issues can be examined in six months (as required under the final bullet point in paragraph 114 of the guidance) or the shorter period? If the decision to grant a shorter period is made prior to an application submission, on what basis will the Secretary of State make the decision? Application documents are rarely finalised and available for review prior to application submission dates so what information could be used to confirm ‘quality’ standards?

The biggest potential hurdle to these reforms actually speeding things up, however, is that they are based on as-yet undefined ‘quality standards’. If the standards are too harsh, this could simply end up putting the onus on the developer to carry out more at the pre-application stage, simply leading to a displacement of the time taken (a two month addition at pre-application in exchange for a two month subtraction at examination), rather than leading to genuinely shorter timescales from pre-application to delivery. Should the standards consider not just quality, but the critical need for infrastructure, or is the intention there is no overall streamlining?

Second, there is an announcement that timescales will be fixed for non-material applications. The policy document notes that ‘changes to consents which are deemed non-material can take up to 16 months to be determined and sometimes cause significant delays to delivery’. No doubt this is true, and the reform should be welcomed. That said, my calculation is that most non-material applications take on average at least half that time.

The policy does not talk about steps which may make the need for non-material amendments less likely altogether though perhaps this is to follow in the ‘NSIP Reform Action Plan’ which is also announced in the policy. I suspect whoever the new Prime Minister is will take a keen interest in what that Action Plan says, given the need to fully streamline projects and increase energy resilience in the long-term.

Third, there is an announcement that there will be a new statutory power for ‘government agencies’ to charge for ‘technical expert advice’ on DCO applications.

Fourth, the policy document contains the list of local authorities receiving funding for dealing with DCO projects in their backyard. Here are a few of the projects which have been funded:

• Suffolk County Council – ‘a virtual NSIP Centre of Excellence for the Eastern Region’ which includes ‘setting up and run a regional virtual CPD programme to upskill staff in topics relevant to the NSIP process.’
• Eden District Council – a project which funds work required to develop the A66’s approach to having a more streamlined Environmental Management Plan. The policy notes the development of that EMP ‘takes work on detailed scheme design addressing many of the key areas beyond the formal points LA of engagement in the DCO process and after the Adequacy of Consultation and Local Impact Report submission. Eden District Council wishes to support and test the innovations proposed to confirm potential timesaving approach.’
• Selby District Council and North Yorkshire County Council – ‘development of a multi-disciplinary environmental framework which helps bring forward multiple NSIPs in a single location through developing a framework which sets out the LA requirements for submitting a DCO including Landscape, Biodiversity, Environmental Health and Heritage scheme for the area which could be used by the Promotor, Local Authority and PINS at application and examination stage.’

Interestingly, the front end of the policy paper compares Norfolk Boreas to Sizewell B by comparing the period for application submission to decision phase for the two projects. Is that really a fair comparison when the purpose of the Planning Act 2008 was to front load a lot more consultation and scheme development prior to an application? The Sizewell B permission (which was to move the plant from a steam-generating heavy water reactor to a pressurised water reactor) was formally announced in 1980, with an application submitted in 1981 (ie, a site-specific pre-application period of 1 year), and the planning consent in 1986. By contrast, whilst the process from application submission to decision for the Norfolk Boreas took 2.5 years, the pre-application period for Norfolk Boreas goes back to at least the grant of their lease by the Crown Estate in 2016, meaning even ignoring the work carried out prior to that milestone, the comparison may be overstating progress in start to end delivery insofar as planning consents are concerned. For reasons we’ve covered before, far form Sizewell B being used as a bad comparator, we think it offers some lessons.

Jubilee Line Extension

I’m a very boring person so I’ve been reading Bob Mitchell’s ‘Jubilee Line Extension: from concept to completion’. It’s quite an apt book to be reading at the time that more NSIP reforms are being announced. The Jubilee Line Extension was consented in a series of Acts of Parliament from 1991 to 1993 so not a DCO, but a few things have stood out to me.

The Environmental Statement for the first Bill was a grand total of 241 pages. Yes, yes, I know times have changed and there are more ambitious / necessary / desirable environmental standards, but it is nonetheless quite a stark contrast, bearing in mind that the JLE had station development near or on various heritage assets and other sensitive receptors. Bob Mitchell explains that the overall construction and environmental management was dealt with via a ‘Project Environmental Policy and the Environmental Management System’ (EMS).

The Environment Policy comprised the following key principles:

• meeting legislative requirements;
• causing minimum disturbance to the community; and
• effective management of environmental issues in all phases of the design, construction and operation of the extension.

The EMS was a series of action plans, supplemented by a Code of Construction Practice (Part A, and Part B – one dealing with project-wide matters, the other dealing with location-specific measures). I think there are some lessons to be learned from that document, not least because its a streamlined document. This clearly wasn’t a cowboy scheme which went off the rails (pun intended). Table 11.9 in Bob Mitchell’s book contains a list of awards the JLE won, including in relation to construction, community trust and archaeology. It’s interesting to note that the House Authorities carried out a consultation explicitly asking about learning from other (non-Hybrid / Private Bill) regimes last year do we need to do more of this in the DCO space?

There’s an interesting saga relating to the location of Westminster Station; the police being concerned about IRA attacks if the station was located to close to Parliament, backbench MPs not wanting their offices in Portcullis House (which was, at the time, not yet built) prejudiced, and the transport body wanting to ensure passenger flows. The outcome was that the backbench MPs and police won: the station was buried deep underground, away from Portcullis House, and with no exits directly onto Parliament Square. The standard processes for ensuring passenger flow were modified to make way for the revised proposals.