985: Will the Action Plan help speed up major projects?

Today’s entry reports on the Nationally Significant Infrastructure Projects Reform Action Plan.

Lights, camera, Action (Plan)

The good folk at the Department of Levelling Up, Housing and Communities have published the much awaited Action Plan. There has no doubt been great effort in getting to this point, not least because of the changing political climate, fast-moving policy context and the volume of materials submitted to them for consideration. Like many others, we’ve had the pleasure of constructively engaging with the team at DLUHC and I am sure all in the industry are grateful for the efforts of officials across Government.

So what is in the Action Plan? It contains largely a collection of things which are already in train, but adds much needed flesh to the bones. Here are the key things to note. First, we know that the energy and national networks National Policy Statements are being reviewed and updated. The Action Plan reveals that the target dates for designation are as follows:

• Water Resources by March 2023;
• Energy (EN-1 to EN-5) by June 2023;
• National Networks (Road and Rail) by December 2023; and
• New Nuclear Power, including small reactors, by early 2025.

Getting the National Policy Statements updated is going to provide much needed certainty, and a new National Policy Statement for New Nuclear (including advanced modular reactors, and small modular reactors) is urgently required. We are currently advising on several small modular reactors across the UK, and we know that developers will be disappointed that ‘early 2025’ is the target date for that new NPS. The UK is losing ground to our European partners, and though it’s very easy for us on the outside to bay and shout for things to be done quickly, one wonders whether the urgent need for energy resilience should force Government to give officials in DESNEZ, the resources they need to aim no later than mid-2024.

Of course, the speed of designation is not the only issue, it’s welcome the Action Plan acknowledges that NPSs should ‘reduce the amount of time taken on difficult negotiations or compromises needing to be reached during the examination process and / or decision stage’. The devil will be in the detail on that front. Importantly, the Action Plan also confirms that DLUHC guidance will be updated to improve and strengthen advice on when and how to prepare NPSs and undertake NPS reviews to ensure an effective and more timely updating and transition process for NPS reviews.

Second, we also knew about the proposals to speed up the examination phase (moving from six months to four months) for projects which met as yet undefined quality standards. The Action Plan announces a date for the consultation on those quality standards: Spring 2023. Interestingly, the Action Plan says that the fast-tracked process will come with a ‘greater expectation on applicants and consultees to engage meaningfully on potential examination and decision issues, underpinned by relevant working-level agreements, including planning performance agreements (PPAs)’. My only comment here is being mindful of the risks associated with objectors effectively being capable of preventing projects (particularly novel and contentious ones) from utilising this process. Interestingly, notwithstanding that reference to PPAs, the Action Plan goes onto to note ‘time is currently wasted negotiating developer funding for planning services (planning performance agreements) rather than getting on with working together constructively’. The proposals under the final ‘resilience’ heading may save time in such negotiations.

The Action Plan also includes proposals for a more ‘proportionate’ examination phase for major projects. The Action Plan sets out:

‘The fast track consenting process will aim to ensure a sustainable, targeted, timely, proportionate and issues-focused approach to pre-application engagement.’

In the context of local authority support, the Action Plan also sets out:

‘We will work to develop guidance on community engagement expectations to ensure that infrastructure developers consider at the outset of their programmes how their projects can address the legitimate concerns of affected communities, regularly engaging with them throughout the pre-application phase and beyond. Infrastructure developers will be expected to demonstrate how the views of the affected communities have been considered and which measures have been taken as a result, as part of the DCO application.’

To the extent that the second paragraph leads to more than the existing obligation to consider consultation feedback, to my mind these two statements are difficult to entirely align, and seems to sit uneasily with the concerns around consultation expressed by the House of Lords Building Environment Committee (noted here), a recent bipartisan report from the Tony Blair Institute (authored by the heart throb himself, and William Hague) as well as the comments from Treasury officials in the press (noted here). If the Government is serious about expediting end to end delivery, it will be important that reduced timescales and proportionality during one phase do not simply mean increased timescales and burden at an earlier stage.

There is a genuine question here about whether we are trying to reinstate the pre-2020 NSIP timescales, or help streamline things even further. Is Government speaking with one voice on that question? On that note, the Action Plan repeats the slight bugbear I mentioned in our previous post in comparing the NSIP timescales (starting from the point of application submission) with timescales for the pre-NSIP regime (which typically has shorter pre-application timescales). There is also the ‘great unseen’ list of projects, ie, those projects which never come forward because of the burdens. Developers, consultants and lawyers are probably well aware of these, but they may never enter the public domain.

Third, we also knew about the proposed and impending Environmental Outcomes Report regime. I have to say, its extremely welcome to see an acknowledgment that Environmental Statements are ‘too long and technical’ and that ‘the sheer volume of material makes assessments impenetrable, preventing them from being properly considered in the decision-making process’. The details on EORs is being worked through but I think it will be imperative to take lessons from Europe.

As we’ve noted, the requirements for EIA are effectively being suspended in Europe for some clean energy projects and my friend Sam Dumitriu has noted how we’ve much to learn from our Spanish brethren. Spain has allowed bypassing EIA for 150mw solar farms and 75mw wind farms provided grid connection lines are not more than 15km in length or exceed 220kV; authorities do not lodge an objection to the project within two months and projects are in areas with low or moderate environment sensitivity. We should be exploring how we can match, if not better, that ambition in this context.

Fourth, there are proposals to help local authorities with the NSIP process. In particular, by establishing a Local Authority Support Network to build capability and capacity across authorities, share learning, and encourage more efficient and effective local engagement with NSIPs. In the same vein, the Action Plan notes the desire to move toward ‘full and proportionate cost recovery for the NSIP consenting system’. In this context, clause 118 of the Levelling Up and Regeneration Bill (see here) sets out that the full requirements of this will be set out in secondary legislation. The government should bear in mind when considering cost recovery that the more costs on developers go up, the less viable projects become.

Finally, there are welcome proposals to enable the Inspectorate to provide ‘Planning advice from the Planning Inspectorate, without prejudice to any future examination or decision’ with the effect of providing ‘early advice on adequacy of consultation’ and ‘assertive NSIP planning and procedural advice’. I do not envy those tasked with enabling ‘assertive advice’ which is ‘without prejudice to any future decision.’

Other news

Interestingly, Lord Moylan – the chair of the House of Lords committee referred to above – has introduced an amendment to the LURB which would import some kind of ‘use or lose it’ for projects directed into the DCO regime under section 35. His amendment would require ‘within three years of making a direction under section 35(1) and annually thereafter, the Secretary of State must consider progress with implementation of the development contemplated in it and, if the Secretary of State considers that it is unlikely to proceed, the Secretary of State may withdraw the direction’ (see Amendment 284 here). Will the Government accept this? Note there is already a way to de-designate s35 projects of national significance (‘PNS’ – don’t say this out loud – which bizarrely are not NSIPs according to the High Court), see this de-designation as an example.

Our client, Luton Rising, has submitted the first commercial aviation DCO application (the first ever aviation DCO project being granted to our client RiverOak Strategic Partners for Manston Airport). Gatwick is expected to submit their application later this year.

There have also been two recent withdrawals of DCO projects prior to a decision on whether to accept them at the examination stage: Cambridge Waste Water and Immingham Ro-Ro Terminal. We are not acting for the promoters on those projects, but that means that between 2020 and 2023, there were eight withdrawals or refusals (before potential acceptance). That compares with seven refusals or withdrawals (prior to the acceptance stage) between 2010 and 2020.

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