Key Update for Developers of Nationally Significant Infrastructure Projects

Penny Simpson, Freeths, Nottingham

On 5 March 2015, the government announced it will be streamlining the consenting process for Nationally Significant Infrastructure Projects (NSIPs), reducing the number of non-planning consents which require agreement from the relevant consenting authorities before they can be dealt with by the Development Consent Order (DCO).

As a departure from the current system, developers of NSIPs will be able to ask the Secretary of State for certain non-planning consents to be included automatically in a DCO, without having to obtain prior agreement from the relevant consenting authorities. This change will be implemented over the course of 2015 to 2017 in respect of 10 non-planning consents which relate to European Protected Species (EPS), flood defence, waste water discharge, trade effluent and water abstraction and impoundment.

The rationale behind these changes is that the government wish to support economic growth by “improving the efficiency and speed of the planning process, particularly for infrastructure delivery”.

NSIPs are typically major, large scale developments relating to energy, transport, water, or waste. The current NSIP regime is intended to be a “one stop shop” for authorising these large infrastructure projects. The DCO, which is central to the regime, deals with a range of consents through one, single application, examination and decision-making process. Planning consents such as planning permission are automatically included in the DCO. A developer can also request for the DCO to remove the requirement for certain non-planning consents (consents needed to build or operate the project such as environmental permits) to be granted. However this is on a case-by-case basis and is only if the relevant consenting authority such as the Environment Agency, the Marine Management Organisation or Natural England agrees.

As part of its Summer 2014 consultation on improvements to the English planning system, the government consulted on proposals for NSIPs to reduce the number of non-planning consents where prior agreement for their inclusion in the DCO is necessary. On 5 March 2015, the government published its response to the consultation and confirmed the changes as mentioned above.

Further information about how these changes will be implemented will be announced in due course, including time scales and legislative method. It is noteworthy that the government has indicated that developers will be able to choose whether they wish to go through the new streamlined DCO procedure or continue to use the existing consenting process.

In terms of the key impact on developers, the proposed changes certainly represent an extension of a unified NSIP system. Naturally, the more consents forming part of the DCO, the fewer consents a developer will need to spend time and money reaching agreement on with the relevant consenting authorities elsewhere. This is particularly significant in relation to the current framework for EPS, where the process of obtaining a EPS licence from Natural England can be a lengthy and burdensome process on the developer.

However, note that the government has emphasised that decision-making following these changes will be no less rigorous than under the existing arrangements. Time will tell whether it is beneficial for developers of NSIPs to make use of the new process in respect of some or all of the affected consents or to continue dealing with the relevant consenting authorities.