The Planning and Infrastructure Bill is a key element of the government's agenda to boost construction activity and drive economic growth. This legislative proposal is part of a broader set of reforms aimed at enhancing the efficiency and speed of the consenting process for critical infrastructure projects. This briefing specifically addresses the changes to the Transport and Works Act 1992 (TWA) set out in the Bill and their impact on the promotion of rail and light rail schemes in England and Wales. 

• Transition from Model Clauses to Guidance: Those of us drafting TWA orders have had to adhere to the model clauses and explain and justify any departure from them.  The Bill provides for their replacement with guidance which can be updated without the requirement for any legislative process and will provide greater flexibility.  Although the Bill mentions that the guidance may include model provisions "considered suitable for inclusion in the drafts", we expect that they will be advisory and less directive than the model clauses.  Experienced promoters of TWA orders are nevertheless likely to stay close to their "standard" provisions while having the ability to be more creative when necessary.  
• Introduction of Statutory Deadlines: The current decision-making framework doesn’t include specific deadlines for making decisions on applications submitted under the TWA although the Transport Infrastructure Planning Unit does often agree target decision dates with applicants. The Bill introduces provisions that enable the Secretary of State to set the timeframe within which decisions should be made. However, it also allows for these time periods to be adjusted on a case-by-case basis. It is anticipated that more detailed information about the determination periods will be provided in regulations.  This change is to be welcomed and puts TWAOs on a similar footing to development consent order applications. 
• Cost Recovery for Statutory Consultees and Local Authorities: The Bill introduces new provisions that allow local authorities and statutory consultees to recover costs for providing advice or services in relation to applications made under the TWA. Although further details will be specified in subsequent regulations, this amendment aims to improve resourcing, which should, in turn, enhance the quality and efficiency of consultee contributions to the approval process, although it will of course increase the cost of the application process itself. 
• Disapplication of Heritage Regimes: The TWA currently stipulates that an application for listed building consent, necessitated by proposals within an application for an order under the TWA, should be referred to the Secretary of State rather than handled by the local planning authority. The Bill broadens the scope of powers that can be included in a TWA order by permitting the disapplication of various heritage protection authorisation regimes, including the requirement to apply for listed building consent. This amendment aims to streamline the process further and expedite project delivery by eliminating the need to obtain such consents separately.
• Deemed Consent under Marine Licence: The Bill extends the powers that can be incorporated into a TWA order by enabling the granting of deemed consent under marine licences. This makes it explicit that this can be done but of course the provisions of the TWA were already wide enough to have permitted it.  The new powers will align the TWA with the Planning Act 2008 which expressly provides that a development consent order (DCO) may deem a marine licence to have been issued, thereby simplifying and unifying the approach to consents granted under the Marine and Coastal Access Act 2009.  
• Changes to the duty to hold a public inquiry or a hearing: Under the current regime, if a local authority or a party affected by compulsory acquisition raises an objection (referred to as a 'statutory objector'), and that party requests their objection to be referred to an inquiry, the Secretary of State is under a duty to either arrange for an inquiry to be held or provide the objector with an opportunity to appear before and be heard by an appointed person (typically a planning inspector), unless the objection is withdrawn. The Bill aims to refine this obligation, limiting it to objections deemed "serious enough to merit such treatment". This is quite a significant change in principle meaning that for the first time a party whose land or interests in land are being acquired could be denied a hearing and it appears that no corresponding change is proposed in other compulsory purchase contexts.  While further clarification on the criteria for determining the seriousness of objections is required, we would assume that it would only be the objection of a party with minor rights that are only temporarily affected that would be regarded as 'not serious'.  Certainly, it is likely that in any judicial review of these decisions, the courts would be likely, in line with longstanding judicial authority, to hold that the right to a fair hearing will have to be adequately safeguarded by the process. 
• Public Inquiry costs: In the context of public inquiries related to applications made under the TWA, it is standard practice for the Inspector's costs to be borne by the applicant. However, the existing regime permits a Minister who orders an inquiry to be held to direct that such costs be paid by "such local authority or party to the inquiry" as they may choose. The Bill seeks to provide clarity on this matter by introducing a new provision which specifies that the applicant will be responsible for any such costs "unless the person exercising the power considers that there is good reason to exercise it differently". It will be interesting to see further guidance on what might constitute a "good reason" for the inspector's costs to be allocated to another party, in order to fully understand the implications of this provision.  Traditionally, it is rare for any party other than the applicant to be required to cover any costs.  

Of further note from a TWA Order perspective is the proposed new power to allow applicants to request that schemes be removed from the Planning Act 2008 DCO process.  This would mean, for example, that for a scheme that is over 2kms long and promoted by Network Rail (and otherwise met the NSIP criteria), Network Rail could request that it be taken out of the DCO regime and instead consented via the TWAO process – this might be attractive for cost or programme reasons.

As the Bill progresses through the legislative process, we will continue to monitor its development and provide further updates on its implications for our clients and the wider industry.