Weathering an infrastructure storm

David Wood reviews the progress so far on refining the planning system to deliver nationally significant infrastructure, and the improvements hoped for in 2025. The country finds itself in the eye of an imperfect infrastructure storm. The urgent need to decarbonise the economy, ensure energy security and meet the transport and energy demands of a rapidly growing urban population is being stifled by historic underinvestment in infrastructure capacity and increasing consenting timescales for major infrastructure projects. Nowhere, said the government shortly after taking office, is decisive reform needed more urgently than in the planning system. This sentiment will ring true for those involved in major infrastructure consenting. There is, after all, a pressing need to accelerate the delivery of major infrastructure projects and to expedite the consenting process. But it’s also an all-too-familiar refrain. The old Reforms to the nationally significant infrastructure project regime have been on the cards for some time. The Conservative government – in all its guises – made great play of its various initiatives to reform the NSIP regime. Building on the 2020 National Infrastructure Strategy and the conclusions of the 2021 National Infrastructure Planning Reform Programme, the 2023 NSIP Action Plan identified five key areas for reform.  These included operational reforms to streamline the NSIP application process – most notably the introduction of new service tiers from the Planning Inspectorate (including a new fast-track consenting stream) and cost recovery for public authorities. Adequate resourcing is a recurring theme across any efforts to reform the planning system, and so those promoting proposals have generally responded positively to cost recovery on the proviso that it increases the capacity available to deal with applications.  It is currently too early to make a judgement on the efficacy of these specific reforms, which are currently bedding in. Stakeholders – not least the promoters paying the bills – will be keeping a keen eye on the extent to which they grease the wheels of decision-making. The new Faced with largely the same problems as its predecessors, the new Labour administration that took office in July whipped out a new and ambitious broom, and some new key words – streamline, accelerate and simplify. The government hit Downing Street running, and August saw the publication of an ambitious suite of proposals to reform the National Planning Policy Framework. The consultation on proposed amendments to the NPPF included some key proposals in connection with infrastructure planning reform, including: Looking at whether to bring into the NSIP regime key high-tech industries, such as data centres, gigafactories and laboratories – recognising the critical importance of this infrastructure to the UK’s economy; Reforming the approach to plan-making and decision-taking for renewables development, with particular attention paid to reintegrating onshore wind development – a bête noire of the Conservatives – back into the NSIP regime; and Recognising the role played by infrastructure development in achieving sustained economic growth and looking at providing undertakers with certainty in the delivery of new strategic water infrastructure. The government has promised its response to the NPPF consultation by the end of the year. In a relatively rare, but refreshing, example of cross-party continuity, the Labour administration has taken forward the work by Lord Banner KC on improving processes around judicial review challenges, which the outgoing government commissioned at the start of the year.  The Conservatives had a keen eye on the effect of delays to NSIP delivery caused by what they termed “inappropriate legal challenges”. Lord Banner KC preferred to use the term “unmeritorious”, and his report, published in October, included a number of worthwhile recommendations on which the new government has sought views. Although the review doesn’t contain any silver bullet, Lord Banner’s recommendations include reducing the number of “bites at the cherry” that claimants have to obtain permission to apply for judicial review, as well as ensuring that proceedings are resolved quickly once lodged.  While the government will need to be alive to the need to balance driving infrastructure development with preserving judicial oversight and the public’s right to challenge decisions, some of the changes proposed by Lord Banner KC have the potential, together with broader fundamental reforms to the system, to speed up the consenting stage of the NSIP process and help to get spades in the ground more quickly. The eagerly anticipated Ministers have promised that the forthcoming Planning and Infrastructure Bill, expected to be introduced in early 2025, will accelerate the delivery of major infrastructure, “streamline and simplify” the consenting process and give increased certainty to developers and other stakeholders by enabling “relevant, new and improved national policy statements” to be brought forward. Policy isn’t usually a headline-grabber, but practitioners await eagerly the new approach to NPSs. This year started with the designation of long-overdue revisions to the suite of energy NPSs (the original versions of which had been around since 2011), and an updated NPS on national networks followed in May. Further improvements on the process for keeping NPSs up to date are to be welcomed.   The ageing NPSs had not kept up with technological advancements and legislative change – including the commitment to achieving net zero – meaning spending time and resources at examination rehashing need cases and policy questions. There is also no doubt that, in recent years, the aged content of some of the NPSs had led directly to legal challenges to the grant of development consent orders. In a welcome move, the government has acknowledged the potential benefits of a level of strategic oversight of the NSIP system to ensuring the timely and efficient delivery of infrastructure.  Responsibility for strategic oversight will be put in the hands of a new National Infrastructure and Service Transformation Authority, which is expected to become operational by spring 2025. NISTA will combine the functions of the National Infrastructure Commission and the Infrastructure and Projects Authority, with a view to developing and delivering a new 10-year national infrastructure strategy (also due to be published in the spring) to drive the more effective delivery of infrastructure. In the government’s words, it will “bridge the gap between what we build and how we build it”. A good start The infrastructure-related noises emanating from Whitehall are, on the face of it, positive and indicate that there is welcome recognition of – and a growing political will to resolve – the infrastructure delivery challenges that the country faces. There are, though, other ways in which an ambitious government could go further in creating an environment that is conducive to the swift provision of infrastructure. As part of its efforts to update the way in which NPSs function, the government might wish to take on board the National Infrastructure Commission’s 2023 recommendations to introduce a system of “modular” updates to NPSs. The modular “bolt-on” updates would allow the NPSs to more easily keep pace with legislative and technological change without the need for a full revision.  As for the contents of NPSs – taking a leaf out of the approach taken in development plan documents (as well as the infamous airports NPS) – allocating sites suitable for NSIP development would establish the principle of development on those sites and do away with the need to rehearse those arguments during the examination process.  There remains work to be done to strike a balance between the tendency to “gold-plate” applications to ensure acceptance and mitigate the risk of legal challenge and the time, cost and delay to which that gives rise. Similarly, a shift towards the standardisation of documents would bring about some marginal gains. Planning performance agreements are, frustratingly, regularly cited as being disproportionately time (and cost) consuming, while efficiencies can surely be made when it comes to the drafting of development consent orders. The updated guidance on DCO drafting includes some helpful standard wording dealing with the procedure for the discharge of approvals in a DCO. There may be some merit in taking forward more wide-ranging template wording to avoid the need for drafting to be justified on a piecemeal basis – model provisions, anyone? As 2024 comes to an end, infrastructure practitioners will be looking forward to the spring of 2025 and the release of the government’s detailed reforms. On the face of it, the proposals on the table could, taken together, go some way towards reducing the time, cost and difficulty involved in consenting NSIPs – and that would be a good start to the new year. David Wood is a senior associate in the planning team at Hogan Lovells International LLP Photo © Casey Horner/Unsplash