957: All change for infrastructure planning

Today’s entry summarises forthcoming changes to the Planning Act 2008 regime.

It’s all change with the Planning Act 2008 / nationally significant infrastructure project (NSIP) / Development Consent Order (DCO) regime, and so we thought it would be useful to set down what’s happening and when, as far as we know.

Primary legislation

The Environment Act 2021 will require all nationally significant infrastructure project applications to provide at least 10% biodiversity net gain from November 2025 (possibly with some variations to special cases like marine projects). In fact there is policy pressure to do this already, but until it is a legal requirement it will be difficult to do things like compulsorily acquire land for it. A consultation took place earlier this year and regulations to flesh out the process are likely to be published later this year for town and country planning applications (which are affected from November 2023), with DCOs to follow. There is an ongoing consultation on ‘marine net gain’.

The Levelling-up and Regeneration Bill is currently at its commons committee stage. It makes a general change to major projects that require environmental impact assessment, which has so far included all projects that are consented via the Planning Act 2008. The EIA regime is being replaced by ‘environmental outcomes reports’. A consultation is expected on how these will work in the next couple of months; the bill is likely to pass next year and be implemented in 2024-25.

The Energy Bill has recently been introduced, and although it doesn’t do anything to the Planning Act 2008 regime at the moment, it is going to have changes at its Lords committee stage in September to introduce a fast-track version of the regime for offshore wind projects that satisfy certain quality thresholds.

Secondary legislation

There is also a general review of the Planning Act 2008 regime going on, heralded by the letter from the then Planning Minister to NIPA on the eve of its 2021 conference, followed up by a consultation later that year. There have been no further public steps on this yet, but presumably a lot has been going on behind the scenes.

This will not result in major surgery to the regime but is likely to involve a series of minor amendments to the suite of regulations that sit below the Planning Act 2008. The timescale is that it is all to be in place by September 2023.

A pledge to introduce timescales for non-material changes to DCOs will presumably appear somewhere in primary or secondary legislation.

National Policy Statements

Five of the energy NPSs (not the nuclear one) have been consulted upon already, but due to the rapid change of policy and ramping up of renewable energy targets since then, are to undergo a second round of consultation on updated versions. This would seem to be fairly imminent had not there been turmoil at the top of the government. The nuclear NPS seems to be stuck at the site selection stage, but ought to get a move on if nuclear is to be part of the energy future. The Government have also announced an intention to produce and consult on a separate nuclear fusion NPS.

The National Networks NPS (covering road, rail and rail freight projects) is also about to be revised and published for consultation – we had thought this would be by the time Parliament rose for the summer on 21 July, but it seems not. The review is supposed to be completed by the middle of next year.

On the Airports NPS the government had said it would consider reviewing it but only once the Jet Zero Strategy had been published. Well, that was published on 14 July so that should mean a decision on reviewing the NPS, and if not, pressure from environmental groups for this to be done.

The Water Resources NPS is also stuck – the PINS website still says the final version will be published in autumn 2019. The Ports, Hazardous Waste and Waste Water NPSs are all getting old and there has only been a not-followed up upon hint that the first of these might be revised.

Digitalisation

There is a general move to make government interactions more digital and the Planning Act 2008 regime is no exception. Expect general changes to the national infrastructure section of the Planning Inspectorate website over the coming months and even more far-reaching changes to the concept of application and examination documents and the like, which may mean changes to the way applicants develop their applications. This will emerge over the coming months.

So that’s it – so far. But don’t worry, this blog will keep you on top of all the changes so stay tuned.