Accelerating the
planning and delivery of infrastructure
The government’s National Infrastructure Strategy sets
a bold target to halve the time taken to consent some projects entering the Nationally Significant Infrastructure Projects (NSIP) regime from September 2023. As public
and private sector clients race to get post-pandemic investments off the drawing board, Robbie Owen, Partner and Head of Infrastructure Planning at Pinsent Masons and National Infrastructure Planning Association (NIPA) Board Secretary, explains the challenge.
Last year's first ever National Infrastructure Strategy underlines this ambition, setting out bold plans to reform two of the key routes used by public and private sector clients seeking consent infrastructure projects.
The UK government has pinned its hopes for the post-Covid economy on accelerating investment in the nation’s infrastructure. As the Treasury’s flagship Project Speed initiative makes clear, reducing the time taken to bring projects to reality is a critical objective.
Alongside planned reforms to the Town and Country Planning Act 1990 (TCPA), it also highlights a new National Infrastructure Planning Reform Programme which it hopes will underpin the ambitious target set to halve the time taken to consent some projects entering the Nationally Significant Infrastructure Projects (NSIP) regime from September 2023.
Better routes to infrastructure consent
Owen points out that when it comes to the speed of the consenting process, the detailed picture depends a great deal on which consenting regime is being considered. And there are, of course, a number of different routes that infrastructure clients can take to achieve consent for projects – depending on nature, size, complexity and what the client is trying to achieve from the consent.
This range of options includes:
The scale and complexity – and sheer number of stakeholders affected – means that the UK’s largest infrastructure schemes, most recently HS2 Phases 1 and 2a, and Crossrail, usually require an Act of Parliament. This is a complex and time-consuming process but delivers a strong and binding result that is not subject to Judicial Review.
Choosing the right consenting regime
When it comes to choosing the right consenting regime, the first question that clients must ask, explains Owen, is what legal powers and consents do they actually need? Do they, for example, simply need to acquire land to build on; do they need wider powers to operate the infrastructure in the future; and is there an imperative to achieve a consent decision within a strict timetable?
“If your project is over a certain size or has particular characteristics, you don't have a choice other than to go through the Planning Act NSIP process,” says Owen. “But, if you are not caught by it, you can still opt into the DCO regime if you believe that it offers advantages, for example in terms of time or cost certainty, but government will need to agree to any opt-in.”
The hard deadlines of the DCO process have made it a very attractive route for public and private sector promoters. The regime insists on a maximum six month period to examine the case, a maximum of three months for the inspectors then to prepare a report, followed by a maximum of three months for the minister to make a decision. The attractiveness of the DCO route is that it delivers much more programme certainty than other consenting routes – particularly useful when there is a tight funding window to achieve planning consent, as there often is with publicly funded projects in particular.
In his role as a director and Board Secretary of the National Infrastructure Planning Association (NIPA), Owen was in discussion with government over the proposed planning reforms in the run up to the National Infrastructure Strategy being published in November 2020.
National Infrastructure Planning Association – sounding board for proposed reforms
“The reforms flagged there are very significant and important,” he says. “NIPA has really acted as a sounding board – and also taken ideas to government over the way not only that the DCO regime operates but also how other regimes such as the Highways Act, TCPA and TWA do.”
Other local planning reforms that have been consulted on include proposals to amend Permitted Development Rights to enable an extension of 25% of the footprint or 250 square metres without requiring planning permission, and the introduction of a faster 10-week planning application process for schools, colleges, healthcare facilities and prisons.
As the National Infrastructure Strategy points out, the NSIP regime is “well-respected but is currently not being implemented as effectively as possible, leading to slower delivery times and more uncertainty”.
Updating the approach to Nationally Significant Infrastructure Projects
So to help accelerate consenting for larger projects, the National Infrastructure Planning Reform Programme has been set up by government to review how the current DCO process is working, with the view to delivering more certainty and better and faster outcomes.
In many respects it has been a success. A Carter Jonas staff survey carried out in May 2020 showed that 69% felt they were more productive working from home, 73% said that working from home had had a positive impact on the amount of exercise they did and 69% of people said that working from home had created a positive impact on their mental wellbeing.
Advice for clients seeking to embrace better consenting
“when it comes to the speed of the consenting process, the detailed picture depends a great deal on which consenting regime is being considered.”
Alongside the ambition to cut overall timescales by
up to 50% for some projects, the reforms are also
seeing government establish a project “acceleration
team” to help guide infrastructure projects through
the system “identifying innovative ways to deliver faster planning consents”.
“local planning reforms that have been consulted on include...the introduction of a faster 10-week planning application process for schools, colleges, healthcare facilities and prisons. "
“Take professional advice but also form your own view on the issue and answer the problem yourself. Your advisers will indicate the answer, but you have to decide whether that is the right solution for you – then understand and own that decision.”
Virtual
training and
staff
development
However, the downside is that it is a fairly complex and prescriptive process, requiring a strong team to drive the process, bring together and present all the necessary evidence and justification in a relatively short period of time.
A major consultation on the TCPA White Paper was held from August to October 2020 on a range of reforms designed to create a simpler and more certain system of planning consent with the overall aim of accelerating local investment and boosting growth across the country.
The overwhelming issue holding back this joined-up approach to national data management is the lack of trust, cooperation and collaboration between the public sector data management organisations and private sector surveying firms. With so much valuable data being collected on a daily basis by RICS-registered surveyors this has to change.
in a post-Covid Britain
1.
“If you're going to, say, go down the DCO consenting route, you have to embrace it – to live and breathe the nature and real demands of the process and bring the right skills and resources on board at the right moment”.
2.
“Be aware of the direction of travel of increasingly important issues such as, for example, social inclusion, diversity, equality and the impact of schemes on community health and wellbeing. Two or three years ago these were much less of a planning issue – but today you must be aware of issues such as these, which are often changing all the time, and frame your consent application in a way that accommodates them including where you think they will be 15-18 months later at the consenting decision point.”
3.
“Examine the pros and cons of the consenting routes but, once you have set the strategy, commit to it with energy. There are not many examples of things going wrong because the wrong route was chosen; but there are more examples where the right route is chosen but the nature of the regime wasn’t properly understood at the time and so it is not then operated very effectively.”
4.
While accepting that the NIS objectives and targets are ambitious and perhaps slightly vague in terms of measurability, Owen explains that they do confirm a strong ministerial desire to undertake an 'end to end' review of the systems we have for consenting all vital public and private infrastructure projects.
“Post pandemic there is a clear need to build back and provide an additional boost to the economy,” he says, highlighting that accelerating the consenting processes is vital if the UK is to embrace the government’s much touted ambitions of “building back better” and “levelling up” the economy - not least since even before the pandemic there was evidence of a gradual slowing down of the infrastructure consenting process.
“Reforming the consenting process is critical to authorising projects in ways which brings people on board much earlier,” he explains. “Whether it is community groups or other stakeholders, everyone affected needs to feel that the scheme is being done with them, not to them."
Act of Parliament:
Suitable for guided transport projects such as railways, tramways and guided busways, and non-harbour works in navigable waters, allowing clients to obtain a wide set of powers and a related deemed planning permission. Came into force in 1992 but not reviewed since 2006.
Transport and Works Act (TWA) Order:
Suitable for certain port and harbour projects with an outcome similar to TWA Orders. In place since 1964 but believed never to have been systematically reviewed.
Harbours Act Order:
Supported by the National Planning Policy Framework and local plans, this
regime allows local planning decisions for development which can include some infrastructure schemes. White Paper consultation launched in August 2020 proposing reforms to bring TCPA planning “into the 21st century”, including whether major new and extended settlements should be able to be consented through the NSIP regime instead (see below).
Town and Country Planning Act 1990 (TCPA) consent:
Suitable for some highway schemes allowing clients to obtain powers to construct works that are not already within the scope of permitted development rights for highway authorities.
Highways Act 1980 Order:
This is the compulsory route for large strategic projects which fall above
pre-determined thresholds set with reference to complexity and significance, whose acceptability is measured against one or more in a suite of national policy statements, and which contains very strict timescales for examining projects and arriving at a decision. This time certainty means clients often elect to use the regime even for projects that fall below the threshold. Brought into operation in 2010 but other than a few tweaks, has never been reviewed.
Planning Act 2008 - Development Consent Order (DCO) for Nationally Significant Infrastructure Projects (NSIP):
“The choice of route goes beyond simply gaining consent for the construction element of the project,” says Owen. “It is only through the consenting element of a project that you can set the parameters that govern the rest of a project’s life and its impact on the community.”
“There are also extensive obligations associated with the DCO process, not least a vast amount of pre-application consultation,” says Owen. “That means making sure that you’ve consulted every single person with a property right or interest which could be affected by the scheme, every relevant local authority and other statutory body, and each community affected. For a long linear scheme, for example, this can be a pretty onerous task.”
In addition, off the back of the Treasury’s Project Speed pointing out the need for ministerial decisions to be streamlined, the National Infrastructure Strategy highlighted inefficiencies in the ways in which public bodies interact with the NSIP regime, and urged greater adoption of digital working practices.
Crucially, the National Infrastructure Strategy also signals that MHCLG will also coordinate the review of the current suite of National Policy Statements which underpin the NSIP consenting regime, so as to better reflect the current drive towards a net zero environment and meeting the challenges of climate change.
“The current series of National Policy Statements is getting a bit old,” says Owen, referring in particular to those relating to energy and transport. “It is all about acceleration of projects rather than simply speed – and making sure that, for example, emerging requirements for biodiversity and carbon effects are taken into consideration during consenting in order to truly build back better and embrace net zero.”
Suitable for some highway schemes allowing clients to
obtain powers to construct works that are not already
within the scope of permitted development rights for highway authorities.
Highways Act 1980 Order
Supported by the National Planning Policy Framework and local plans, this regime allows local planning decisions for development which can include some infrastructure schemes. White Paper consultation launched in August 2020, proposing reforms to bring TCPA planning “into the 21st century”, including whether major new and extended settlements should be able to be consented through the NSIP regime instead (see below).
Town and Country Planning Act 1990 (TCPA) consent
Suitable for certain port and harbour projects with an outcome similar to TWAO. In place since 1964 but believed never to have been systematically reviewed.
Harbours Act Order
Suitable for guided transport projects such as railways, tramways and guided busways, and non-harbour works in navigable waters, allowing clients to obtain a wide set of powers and a related deemed planning permission for projects within the size thresholds. Came into force in 1992 but not reviewed since 2006.
Transport and Works Act Order (TWAO)
The scale and complexity – and sheer number of stakeholders affected – means that the UK’s largest infrastructure schemes, most recently HS2 Phases 1 and 2a, and Crossrail, usually require an Act of Parliament. This is a complex and time-consuming process but delivers a strong and binding result that is not subject to Judicial Review.
Act of Parliament
David adds: "For the government’s Project Speed to be truly effective, and accelerate all infrastructure sectors, a review is required not only of the Planning Act regime, but of all legislation, with the aim to deliver the improvements in streamlining the process. This includes the Transport and Works Act, Highways Act and Electricity Act.
"There will always be major projects that require consenting under the other regimes, and those processes require modernising and streamlining as much as the DCO route, in order to ensure that all infrastructure schemes can be progressed as efficiently as possible."
This is the compulsory route for large strategic projects which fall above pre-determined thresholds set with reference to complexity and significance.
Acceptability is measured against one or more in a suite of national policy statements, and contains very strict timescales for examining projects and arriving at a decision. This time certainty means clients often elect to use the regime even for projects that fall below the threshold. Brought into operation in 2010 but, other than a few tweaks, has never been reviewed.
“The choice of route goes beyond simply gaining consent for the construction element of the project,” says Owen. “It is only through the consenting element of a project that you can set the parameters that govern the rest of a project’s life and its impact on the community.”
Planning Act 2008 - Development Consent Order (DCO) for Nationally Significant Infrastructure Projects (NSIP)
Be an intelligent client
Resource intelligently
Understand the emerging issues
Set a consenting strategy and commit to it
David Vernon, Consenting Partner at Carter Jonas, adds: "There is still a reluctance in some sectors to promote Development Consent Orders and, in some instances, schemes are actively designed to avoid having to use the Planning Act regime. This is borne from familiarity, and fear of the unknown. More education and awareness is required across the industry to highlight the benefits of promoting the DCO route, and encourage it as an option to be sought out, as Robbie highlights above, even if below the thresholds for requiring one."
PLANNING AND DELIVERY
ACCELERATING THE
Alongside planned reforms to the Town and Country Planning Act 1990 (TCPA), it also highlights a new National Infrastructure Planning Reform Programme which it hopes will underpin the ambitious target set to halve the time taken to consent some projects entering the Nationally Significant Infrastructure Projects (NSIP) regime from September 2023.
While accepting that the NIS objectives and targets are ambitious and perhaps slightly vague in terms of measurability, Owen explains that they do confirm a strong ministerial desire to undertake an 'end to end' review of the systems we have for consenting all vital public and private infrastructure projects.
“Post pandemic there is a clear need to build back and provide an additional boost to the economy,” he says, highlighting that accelerating the consenting processes is vital if the UK is to embrace the government’s much touted ambitions of “building back better” and “levelling up” the economy - not least since even before the pandemic there was evidence of a gradual slowing down of the infrastructure consenting process.
The UK land registration and management system is a case in point. Throughout the current development, planning and surveying world today, our operations and decisions are based largely what we’ve always done, supplemented by manually recorded information gleaned from usually out of date ‘boots on the ground’ surveys.
The scale and complexity – and sheer number of stakeholders affected – means that the UK’s largest infrastructure schemes, most recently HS2 Phases 1 and 2a, and Crossrail, usually require an Act of Parliament. This is a complex and time-consuming process but delivers a strong and binding result that is not subject to Judicial Review.
Act of Parliament
Suitable for guided transport projects such as railways, tramways and guided busways, and non-harbour works in navigable waters, allowing clients to obtain a wide set of powers and a related deemed planning permission for projects within the size thresholds. Came into force in 1992 but not reviewed since 2006.
Transport and Works Act Order (TWAO)
Suitable for certain port and harbour projects with an outcome similar to TWAO. In place since 1964 but believed never to have been systematically reviewed.
Harbours Act Order
Supported by the National Planning Policy Framework and local plans, this regime allows local planning decisions for development which can include some infrastructure schemes. White Paper consultation launched in August 2020, proposing reforms to bring TCPA planning “into the 21st century”, including whether major new and extended settlements should be able to be consented through the NSIP regime instead (see below).
Town and Country Planning Act 1990 (TCPA) consent
Suitable for some highway schemes allowing clients to obtain powers to construct works that are not already
within the scope of permitted development rights for highway authorities.
Highways Act 1980 Order
This is the compulsory route for large strategic projects which fall above pre-determined thresholds set with reference to complexity and significance.
Acceptability is measured against one or more in a suite of national policy statements, and contains very strict timescales for examining projects and arriving at a decision. This time certainty means clients often elect to use the regime even for projects that fall below the threshold. Brought into operation in 2010 but, other than a few tweaks, has never been reviewed.
However, the downside is that it is a fairly complex and prescriptive process, requiring a strong team to drive the process, bring together and present all the necessary evidence and justification in a relatively short period of time.
“There are also extensive obligations associated with the DCO process, not least a vast amount of pre-application consultation,” says Owen. “That means making sure that you’ve consulted every single person with a property right or interest which could be affected by the scheme, every relevant local authority and other statutory body, and each community affected. For a long linear scheme, for example, this can be a pretty onerous task.”
“local planning reforms that have been consulted on include...the introduction of a faster 10-week planning application process for schools, colleges, healthcare facilities and prisons. "
A major consultation on the TCPA White Paper was held from August to October 2020 on a range of reforms designed to create a simpler and more certain system of planning consent with the overall aim of accelerating local investment and boosting growth across the country.
So to help accelerate consenting for larger projects, the National Infrastructure Planning Reform Programme has been set up by government to review how the current DCO process is working, with the view to delivering more certainty and better and faster outcomes.
In addition, off the back of the Treasury’s Project Speed pointing out the need for ministerial decisions to be streamlined, the National Infrastructure Strategy highlighted inefficiencies in the ways in which public bodies interact with the NSIP regime, and urged greater adoption of digital working practices.
Crucially, the National Infrastructure Strategy also signals that MHCLG will also coordinate the review of the current suite of National Policy Statements which underpin the NSIP consenting regime, so as to better reflect the current drive towards a net zero environment and meeting the challenges of climate change.
“The current series of National Policy Statements is getting a bit old,” says Owen, referring in particular to those relating to energy and transport. “It is all about acceleration of projects rather than simply speed – and making sure that, for example, emerging requirements for biodiversity and carbon effects are taken into consideration during consenting in order to truly build back better and embrace net zero.”
David adds: "For the government’s Project Speed to be truly effective, and accelerate all infrastructure sectors, a review is required not only of the Planning Act regime, but of all legislation, with the aim to deliver the improvements in streamlining the process. This includes the Transport and Works Act, Highways Act and Electricity Act.
Our urban town centres are often fragmented with multiple ownerships, complex lease structures, unidentified air rights and other surface and sub-surface easements – often to parties who are extremely difficult to trace. The reality is that our current system of recording this information on the HM Land Registry database is too often out of date, creating a discrepancy between the registered owner and the actual party in control of the assets.
Advice for clients seeking to embrace better consenting
“Take professional advice but also form your own view on the issue and answer the problem yourself. Your advisers will indicate the answer, but you have to decide whether that is the right solution for you – then understand and own that decision.”
Be an intelligent client
1.
“If you're going to, say, go down the DCO consenting route, you have to embrace it – to live and breathe the nature and real demands of the process and bring the right skills and resources on board at the right moment”.
Resource intelligently
2.
“Be aware of the direction of travel of increasingly important issues such as, for example, social inclusion, diversity, equality and the impact of schemes on community health and wellbeing. Two or three years ago these were much less of a planning issue – but today you must be aware of issues such as these, which are often changing all the time, and frame your consent application in a way that accommodates them including where you think they will be 15-18 months later at the consenting decision point.”
Understand the emerging issues
3.