1008: Planning Act 2008 regime change status report

This week’s entry summarises where we are with all the ongoing changes to the Planning Act 2008 regime for consenting nationally significant infrastructure projects.

General review of the regime

A commitment to review the regime by September 2023 was made on 7 July 2021 in this letter. It divides the review into three strands: an operational review including project acceleration, national policy statements, and environmental impact assessment / strategic environmental assessment reform.

More than 18 months later, the government published an ‘Action Plan’ for reform on 23 February 2023.

On 25 July 2023 it launched a consultation on implementing the action plan, proposing, amongst other things, compulsory charges for pre-application engagement and a fast-track examination process. The consultation closes on 19 September 2023. The initial ambition of implementation by that month clearly won’t be achieved but at least the proposed changes are now set out and in progress.

Some of the proposals require legislative change, both to primary legislation (ie, the Planning Act 2008 itself) and secondary legislation (ie, to rules and regulations made under it). Here is what is currently contemplated.

Legislative changes

The Levelling-up and Regeneration Bill contains most, if not all, of the required changes to the Planning Act 2008. It is currently mid-way through its report stage in the House of Lords (next sittings are on the 4, 6 and 13 September), so it just has third reading and ‘ping pong’ (reconciliation of Commons and Lords’ versions) to go. The current version of the bill can be found here but changes have already been made to it at report stage.

The changes are as follows:

• examining authorities may be directed to comply with electronic data standards (clause 79), ie the digitisation of examination of DCO applications is to be enabled;
• a power to allow public bodies to charge fees in relation to DCO applications is created (clause 120);
• a shorter examination period than six months may be set (clause 121);
• statutory timescales may be introduced for non-material change applications (clause 122);
• the Planning Act 2008 could be consolidated with other planning legislation (clause 126);
• remote participation in proceedings may be permitted (clause 127); and
• environmental impact assessment may be replaced with a regime requiring environmental outcomes reports (clauses 143-157).

That last point covers the third strand of the reform programme and was subject to a consultation that closed on 9 June 2023. It is not covered further here, but if you want to learn more, please view these webinars: Environmental Assessment Reform (setting out the basics) and Latest developments with Environmental Outcomes Reports (an update covering the consultation).

Relatedly, mandatory biodiversity net gain is intended to apply to DCO applications from November 2025.

National Policy Statements

The recent story of National Policy Statements is a sorry one. Since 2015, only one new NPS has been designated, and none of the existing ones has managed to be updated. Here are the details.

The six current NPSs for energy are still those that were designated on 19 July 2011. Second versions of revised drafts of five of them were subject to consultation that closed on 23 June 2023.

It is not clear how the Energy Security and Net Zero Committee of the House of Commons is going to examine them – a required step – but it hasn’t done so yet, so the NPSs are currently stuck.

The sixth NPS is for nuclear energy, and it was announced in the Action Plan in February 2023 that it would be replaced by a new NPS numbered EN-7 to be designated by early 2025 and a further one covering nuclear fusion (EN-8?), but no further announcement has been made about it.

The current NPSs for transport are ports, designated 26 January 2012, national networks (road and rail), designated on 14 January 2015 and airports (actually just Heathrow expansion), designated 26 June 2018.

The Secretary of State announced on 14 March 2023 that the ports one would be reviewed but nothing public has happened since then.

A consultation on a revised draft of the national networks, one closed on 6 June 2023. The Transport Committee of the House of Commons was taking evidence on it shortly before Parliament rose for the summer, so at least there is some activity on that one – indeed, it seems to be the only one on which there is any activity.

The government committed to considering whether the airports NPS should be reviewed once the ‘Jet Zero’ strategy was published, which happened on 19 July 2022 but no public announcement has been made since.

The remaining three NPSs are waste water, designated on 9 February 2012, hazardous waste, designated on 6 June 2013, and geological (nuclear waste) disposal, designated on 17 October 2019.

No plans to revise any of those have been announced. An unlucky thirteenth NPS on water resources was published in draft on 29 November 2018 and consulted upon. A final draft was laid before Parliament on 17 April 2023, but nothing has happened since then, so it is not officially designated yet.

In summary, progress is happening in fits and starts but is decidedly patchy.