The reforms could see the Planning Inspectorate becoming not just a an organisation that runs the rule over development consent order (DCO) applications but also acts as a consultant to project promoters to help them with their applications.
Highways England (as it was then) submitted a DCO application to the Planning Inspectorate in October 2020 No for the Lower Thames Crossing but had to withdraw it because it had submitted incomplete information. It took a further two years for the organisation, by now rebranded as National Highways, to get a viable application in. The reform plans should prevent this sort of screw up.
The DCO process for nationally significant infrastructure projects (NSIPs) was created by the Planning Act 2008 for energy, transport, waste and water projects. Since its introduction in 2010, more than 110 NSIPs have been consented. In 2011, amendments through the Localism Act brought democratic accountability, with ultimate decision-making power given to the secretaries of state. The regime was extended in 2013 to include large scale business and commercial schemes and again in 2016 to allow related housing development to be consented as part of a DCO.
According to the government, the NSIP process has reduced the time taken for major infrastructure projects to achieve development consent to an average of around four years, compared to the eight years it took to get Heathrow Terminal 5 through a conventional planning inquiry. However, the average timespan for DCOs has increased from 2.6 years in 2012 to 4.2 years in 2021.
In February this year the Department for Levelling Up, Housing & Communities (DLUHC) published its NSIP action plan to speed up the DCO process. Five months later comes the consultation paper: Consultation on operational reforms to the Nationally Significant Infrastructure Project (NSIP) consenting process.
It states: “Evidence suggests that the pre-application stage is taking more time but failing to adequately identify and resolve key issues prior to application submission and the subsequent examination. We therefore propose to improve the pre-application process by:
- revising the pre-application service offering of the Planning Inspectorate, including the introduction of a new enhanced pre-application service
- enabling the Planning Inspectorate to provide merits and procedural section 51 advice whilst maintaining impartiality
- providing greater clarity for applicants on who to consult and when
- ensuring more effective and proportionate consultation through an early ‘adequacy of consultation’ milestone
- revising and updating pre-application guidance concerning certain consultation requirements and providing greater clarity about what is required for an application to be accepted.”
Project developers will have to pay the Planning Inspectorate for its assistance; the more they pay, the more help they will get, the consultation paper proposes. The fees will go to building up the inspectorate.
“The Planning Inspectorate is developing a new chargeable approach to its pre-application services. In order to ensure that all applicants are effective in bringing parties together to identify and address potential examination matters, proportionate to the circumstances of the project, the Planning Inspectorate is developing 3 levels of service offer for their pre-application service for applicants. The services will range from basic, which focuses on statutory minimum procedural section 51 advice on applying for or making representations on an application for development consent order, and updates at main milestones, to enhanced which supports applicants of very complex projects to identify and tackle complex issues.
“The pricing of each level will be designed to achieve cost recovery reflecting the amount of resource input required from the Planning Inspectorate to deliver the respective services. More information on how this service will be charged for is set out in section 6 of this document. No changes are planned to the service which the Planning Inspectorate provides to statutory consultees and others, who will still receive advice without charge.”
The consultation runs until 19th September 2023. DLUHC intends to publish its response the consultation next spring. Subject to consultation responses, the government will bring forward the secondary legislation needed to implement the required changes to deliver the reform programme, assuming it is still in office by then.
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