What’s the background?

As covered in our bulletin of February 2023 on the government’s NSIP Action Plan (here), there is a pressing need to accelerate the delivery of major infrastructure projects in the UK and to expedite the NSIP consenting process established under the Planning Act 2008.

Introduced to great fanfare as a response to a number of high profile and hugely prolonged major development applications, it has generally been accepted that this “one-stop shop” consent for national infrastructure projects initially worked well. However, as the Commission notes, since 2012 consenting times have increased by 65% and, more recently, an increasing number of schemes that are granted development consent have been subject to judicial review challenges.

Alongside the publication of its NSIP Action Plan, the government asked the Commission to review the NSIP regime and the role of National Policy Statements (NPS). We were delighted to be invited by the Commission to join discussions as part of its review and welcomed the opportunity to inform and help shape the Commission’s bold and ambitious proposals for reform.

What’s the outcome?

The Commission has identified six key recommendations:

Compulsory NPS reviews

By 2025, government should legislate to require at least five-yearly reviews of the NPSs for energy, water resources and national networks. By the same deadline, government should set out the criteria for triggering reviews of other NPSs. Onshore wind should be brought into the NSIP regime as soon as possible.

“Modular” updates to NPSs 

By July 2024, government should introduce a system of “modular” updates to NPSs linked to primary or secondary legislation. These modular “bolt-ons” are to be designed to ensure clarity on how future legislation relates to NPSs and allow the NPSs to more easily keep pace with legislative change.

Moving away from a scheme-by-scheme approach to environmental impact assessment

By the end of 2024, DEFRA should introduce a data-sharing platform for environmental data.  By the end of 2025, statutory consultees should develop a mitigation library for different kinds of infrastructure.  Also by the end of 2025, statutory consultees should receive and use new developer funding to gather baseline data and agree strategic mitigations for urgent infrastructure (wind generation and electricity transmission first, then water resources).

Ensuring host communities benefit

By the end of 2023, government should develop a framework of direct benefits for local communities and individuals where they host NSIPs which would otherwise deliver few local benefits (the example the Commission gives is electricity transmission lines).

Accountability and central oversight of performance

By the end of 2023, a central coordination and oversight mechanism should be developed – reporting to the Prime Minister or Chancellor – with measurable targets for reducing consenting times for NSIPs.

Reflecting the need for NSIPs in statutory consultees’ remits

By May 2024, performance indicators for statutory consultees operating under a cost recovery model should form part of compulsory service level agreements with developers, with budget implications for failure to meet agreed service levels. Developers’ applications should be accepted for examination only once service level agreements are in place.

What’s next?

The Commission’s proposals are wide-ranging and bold.

The headlines are likely to focus on the proposals for a community benefits regime – a concept that is employed widely in other countries through direct payments or structures such as tax increment financing but which has been slower to take off in England and Wales, where Section 106 (and all its baggage) reigns supreme.

The ambitious timescales set by the Commission for government to implement its recommendations are also notable (not least because they involve meaningful action being taken in advance of the upcoming UK election). There is a clear recognition that the need for reform is long overdue and that further delays arising from the consenting system are likely to constrain and delay the economic and social benefits of major infrastructure projects and hinder their ability to contribute to the achievement of Net Zero by 2050 – the government’s landmark climate objective.

To that end, the clock is ticking – and the government’s response to the Commission’s report is eagerly awaited.

A copy of the Commission’s report is available here.