Introduction
The NSIP Pre-Application Prospectus (the Prospectus) is the latest output of the review of the development consenting process for nationally significant infrastructure projects (NSIPs) that began in 2021 with the ambition of accelerating and improving DCO decision-making. Specifically, it is the Planning Inspectorate's response to the Government's 'Nationally Significant Infrastructure: action plan for reforms to the planning process' and subsequent consultation and response published earlier this year.
The Prospectus sits alongside recently updated Government guidance on the National Infrastructure Planning Guidance portal and supersedes its predecessor document published in 2014, which it advises "should not be relied on by projects entering the PA2008 system from May 2024". There are also transitional arrangements for projects already at the pre-application stage.
We summarise the key operational reforms to the NSIP process set out in the Prospectus and the updated guidance and provide our commentary below.
The Planning Inspectorate's new pre-application service and fees
The Inspectorate's new offer in the Prospectus is a pre-application service comprising three optional tiers of service: Basic, Standard and Enhanced.
Applicants are required to subscribe to one of these tiers at the pre-application stage, with different tiers being suitable for different projects and providing different levels of input from/access to the Inspectorate. There are corresponding fees for each service tier, which are designed to meet the Government's policy objective of full costs recovery in NSIP service provision. Click here to see the summary.
The Prospectus advises that the Basic tier service "is a higher risk consenting strategy for most applications", whilst the Enhanced tier service is "an appropriate service for projects that require… system-wide coordination and support". For most projects, the Standard tier is considered to be appropriate. The exception to this is for projects proposed for entry into the Fast Track procedure for which the Enhanced tier is compulsory.
The Inception Meeting and choice of service tier
Going forward the Inception Meeting will be the start of the pre-application stage for the Planning Inspectorate and is where the applicant will confirm its requested service tier. Certain project information is required to be provided at this meeting for this purpose.
The service tier will either be agreed at the Inception Meeting or no later than 28 days after the meeting and it is from this point that the relevant service fees are incurred. Whilst the Prospectus anticipates that the Inspectorate and the applicant will normally agree on the appropriate pre-application service tier, it indicates that the Inspectorate's view will be final where there is disagreement, albeit that the Inspectorate "will only ever exercise this policy where we consider that a lower tier service is appropriate".
The agreed tier will be kept under review throughout the pre-application stage. If circumstances change, an applicant may be advised by the Inspectorate, on the basis of risk, to change tier.
Transitional arrangements
For projects already at the pre-application stage, the Planning Inspectorate is running an expression of interest until 10 July 2024 for applicants to express which of the three pre-application tiers that they would wish to apply to their project. It is intended that all applicants will be informed by the end of August of the available service tier for their NSIPs and then charging for the new services will be phased as follows:
- 1 October 2024 for all projects subscribing to the Enhanced tier;
- 1 October 2024 for projects that have not notified the Planning Inspectorate or requested an opinion in accordance with the EIA Regulations before 30 April 2024; and
- 1 April 2025 for projects that have notified the Planning Inspectorate or requested an opinion in accordance with the EIA Regulations before 30 April 2024.
Primary service features
The Prospectus introduces the following "primary service features" (effectively general requirements) that apply to all applications, regardless of which tier is chosen at the pre-application stage:
1. Programme Document: An applicant document setting out and tracking the main steps taken during the preparation of the application.
2. Issues Tracker and Potential Main Issues for Examination (PMIE): An applicant document tracking issues through the pre-application stage and identifying the associated degree of risk on a 'RAG' (red/amber/green) basis, cumulating in the PMIE for the Examination.
3. Advice Log: The Planning Inspectorate's record of interactions with the applicant (replacing meeting notes).
4. Adequacy of Consultation Milestone (AoCM): To allow early consideration of the adequacy of the applicant's consultation and to be informed by a written submission by the applicant.
5. Demonstrating regard to advice: Requirement for production of evidence presented within the Consultation Report demonstrating the applicant's regard to advice from the Inspectorate and other bodies.
The Fast Track procedure
The Prospectus sets out the process by which applicants may apply to the Inspectorate to be considered for the Fast Track procedure. This results in the application being examined for a statutory maximum period of 4 months (reduced from the standard 6 months) and aims for a decision within 12 months of the application being accepted for examination (achieved by the pre-examination stage being a maximum of 3 months, the Inspectorate producing a recommendation within 2 and a half months and the relevant Secretary of State producing their decision within a further 2 and a half months).
The Prospectus sets out the factors that applicants should consider before applying for the Fast Track procedure, including the novelty and complexity of the likely issues and levels of interest in the project. An applicant's interest in the Fast Track procedure should be established at the Inception Meeting. This necessitates additional matters being covered in the Programme Document and the discharge of certain procedural steps following the Inception Meeting, including demonstrating that the application meets the Quality Standard via the Fast Track Admission Document to be submitted with the application.
The Quality Standard is effectively an additional test that is considered at the acceptance stage. The decision that the application satisfies the Quality standard is independent of the Inspectorate's decision relating to the acceptance of the application, although admission to the Fast Track is itself provisional until the Examining Authority has considered all Relevant Representations later in the process and is satisfied that the application can be examined within the reduced 4 month period.
AG commentary
The headline grabbing change in this latest round of NSIP reform is, of course, the introduction of the Fast Track procedure. However, NSIP promoters should note that the process reforms are much more extensive than this, with the introduction of the service level tiers and the requirements comprised within the so-called 'primary service features' affecting all new NSIP applications going forward.
As a general comment, it is difficult to see how imposing additional requirements on applicants will help accelerate the NSIP process in line with the Government's stated objective and instinctively one may have expected a direct link between the new service level tiers and the timetable to decision (particularly given that a project's suitability for each tier is essentially based on how complex/controversial the project is). But the tiers are clearly following an airline-style model where the user pays more to get to the end point of the process more comfortably, not more quickly.
For greater speed, there is though the option to enter the new Fast Track procedure provided that your project is deemed suitable for the procedure and as applicant you are prepared to commit to the most expensive service level tier and associated procedural requirements at the pre-application stage. Even then admission to the Fast Track will not be confirmed until the Relevant Representations stage and at the end of the process the Secretary of State is not guaranteed to produce a decision within the reduced timetable.
Whilst these factors will undoubtedly make the option of the Fast Track procedure less attractive/inaccessible for some promoters, one must recognise the inherent difficulties of compressing the timetable in the existing process. For those projects that may be suitable for the Fast Track procedure, the not inconsiderable carrot is the possibility of a decision within 12 months of the application being accepted for examination. It is also notable that the Fast Track is not restricted to energy-related NSIPs despite the British Energy Security Strategy being identified in the Prospectus as part of its genesis.
As a matter of general principle then, the introduction of the option of the Fast Track procedure can only be regarded as a positive step. At the very least it is a statement of intent but, if the new procedure is able to function as the Inspectorate envisages, then operating at its best it will directly accelerate the DCO process for those projects that opt for it.
Ultimately a watching brief will be kept on this and the other procedural changes in the Prospectus, which advises that measures within this version "are anticipated to evolve as they are matured and embedded in practices and procedures. On this basis, the Prospectus will be a flexible resource and subject to amendment and update as we continue to learn to optimise the process together."
Going forward then, the expectation from the Inspectorate is not only that NSIP promoters get to grips with the choice of new service level tiers and Fast Track procedure, but they should work with the Inspectorate to secure ongoing improvements to process based on their experience in practice.
