The government has some high hopes for its Planning and Infrastructure Bill, proposing a shake up of consents and consultation around nationally significant projects, but can it deliver? Tim Clark reports
Getting Britain building has been a central tenet of the Labour government since it unveiled its manifesto last spring.
The recently unveiled Planning and Infrastructure Bill aims to help the government deliver 150 major economic infrastructure projects during the lifetime of this parliament by issuing Development Consent Orders (DCOs), which effectively give the green light to projects.
The new Planning and Infrastructure Bill aims to brush aside red tape, bring forward schemes more quickly and put “spades in the ground” as politicians like to put it. Indeed, as the government’s own release to accompany the Bill notes, the new law promises the ‘biggest building boom’ in a generation.
Announcing the new bill the government stated that: “By ensuring shovels can be put in the ground more quickly and projects are freed from unnecessary bureaucracy, these measures will help deliver a building boom that will deliver a major boost to the economy worth billions of pounds, and create tens of thousands more jobs as houses and infrastructure are built.
“It will make Britain a more attractive prospect for investment and development with a planning process that works for the builders, not blockers.”
But how will it achieve its aims, and how can changes to the law facilitate any building boom? Three key changes will help boost infrastructure delivery. These include a quicker review of national policy statements, new powers to bypass development consent for specific projects, and an improved consultation process for infrastructure projects.
The key for the government is to get big projects off the starting blocks. Known as Nationally Significant Infrastructure Projects (NSIP), they include anything from a bypass to a new reservoir.
When it comes to consultations, the Bill will amend requirements on the content of consultation reports to enable shorter and more concise reports that effectively summarise the themes raised, and how they have informed applicants’ proposals.
One big change in the new Bill is mandatory updates to National Policy Statements (NPS), which provide guidance to NSIPs.
Power of consent
One new clause in the Bill requires the secretary of state to review and amend National Policy Statements ‘whenever they think it appropriate to do so’, and in any event at least once every five years.
The secretary of state may only delay a review in exceptional circumstances. Although giving legal effect to a requirement to keep the NPSs (reasonably) up to date is welcome, recent NPSs (eg for energy) already state that the secretary of state should consider whether a review is required at least every five years.
Another clause introduces a potentially significant new power for the secretary of state to dis-apply the requirement for development consent, as set out within an amendment to the Planning Act of 2008.
As it stands, a section 35 power can allow ministers to “opt in” to the NSIP with a project. This change allowed them to “opt out” and potentially speed up the process. a reverse section 35 power (section 35 directions can be used to ‘opt in’ to the NSIP regime).
The circumstances in which the secretary of state will be willing to exercise this power are as yet unclear, but we can certainly think of examples of projects which could have made a good case for not being treated as NSIPs, even though they technically exceeded the thresholds set out in the Planning Act.
Not everyone is convinced that the changes will work.
“Although these clauses represent welcome changes and updates to the NSIP regime, in our view they are unlikely to significantly decrease the time it takes for consents to be granted,” says John Arthur, managing associate at TLT. “Given the government’s stated ambitions, they may need to go further, faster in terms of accelerating projects through the process.”
Alex Minhinick, partner at law firm Burges Salmon, says: “The Bill proposes significant measures to speed up planning decisions and remove unnecessary blocks and challenges to wind farms and other projects such as rail and road.
“It seeks to speed up the NSIP regime by streamlining consultation requirements for projects. The Bill proposes that the secretary of state may take into account any non-statutory consultation or publicity carried out by the applicant in connection with the development.”
Minhinick points out that under the current regime, the requirements placed on developers has led to what the current government deems as ‘disproportionately lengthy’ consultations with statutory consultees such as National Highways or the Environment Agency as well as with the general public.
Under the new Bill, the Planning Inspectorate will be able to take a more proportionate approach in determining whether to accept an application for examination and enable minor changes to the application in advance of a decision if necessary to make it acceptable.
“In a similar fashion, bureaucracy will be removed, where possible, from transport projects by amending the Highways Act and Transport and Works Act. By way of example, the Bill proposes to streamline the approval of street works needed for installing EV charging points and remove the need for licenses,” he adds.
Slow progress
It is fair to say that the government has been frustrated by slow progress in infrastructure. In January the prime minister Keir Starmer backed plans to allow high court judges to block judicial reviews they deem to be “totally without merit” from going to appeal. Freeing up court time.
As Build in Digital noted in January, the government took account of recommendations made in Lord Banner KC’s independent review of judicial reviews. The new Bill makes provision for the removal of the paper permission stage for judicial reviews of NPSs and Development Consent Orders, and removes the right to appeal for cases deemed totally without merit at the oral permission hearing.
An overhaul of the Highways Act of 1980 will introduce statutory deadlines for secretary of state decision stages. The new deadlines should expedite decisions and come alongside establishing powers for temporary land possession, and enable cost recovery for statutory consultees and local authorities that provide highways related advice.
Another aspect of the new Bill is how decision-making at planning level will be reformed.
According to Sadie Pitman, associate, planning infrastructure and environment at Charles Russell Speechlys, the new bill includes provisions on what planning functions can be discharged by planning committee, sub-committee or officer.
“The intention is to provide a national scheme of delegation; helping to standardise and streamline which decisions are decided by committee, and which are delegated to officers,” she says. “However, taking decisions away from committees, and thereby removing a layer of democratic oversight, risks a loss of accountability for planning decision-making at local level.”
The decision-making would affect housing schemes, not major projects such as wind farms, but the changes to how planning consent is gained, and who ultimately has the choice in decision-making, will impact across the sector.
Although the main thrust of the new Bill is to increase the delivery of new homes, the infrastructure associated with housing is also put under the spotlight. A shift to strategic planning is key. Here, the Centre for Cities isn’t convinced that the government will be able to implement its aims, at least without difficulty.
“Greater Manchester has struggled to get a strategic plan in place for a decade, partly because trying to shuffle housing need between different councils and partly because the metro mayor lacks the power to get a strategic plan through,” says Anthony Breach, associate director at Centre for Cities.
“The government wants to manage this by changing the voting thresholds required to strengthen the mayors and get strategic plans through – but this risks papering over political tensions rather than resolving them.
“Second, the political tensions of strategic planning will be even bigger in the shires outside the big cities, where the distinction between town and country is much greater. Trying to force rural authorities to absorb urban housing need has always generated huge resistance but is necessary for the current planning system to function.”
It is fair to say that the government means business. The Planning and Infrastructure Bill has already had its second reading date of March 24 put into the parliamentary calendar. As legal commentators noted, this is well within the “usual parliamentary time schedule”, which means it is proceeding at a quick rate.
The real test will be whether the new provisions, when passed into law, make a real difference to delivery.
Image credit: Gorodenkoff – Shutterstock
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