In early September, the Department for Levelling Up, Housing and Communities announced that the examination period for infrastructure projects could be shortened from six months to four months, that there would be a forthcoming infrastructure action plan and that there would be fixed timescales for non-material amendments to Development Consent Orders (DCOs).
The ability for the shortened examination period to speed up delivery, however, all hinged on as yet undefined technical “quality standards”. There was a risk that the process would simply ask developers to do more pre-application with no streamlining of the timescales from pre-application to delivery. The timescales for non-material amendments were similarly helpful, but are certainly not the greatest impediment to the delivery of major projects (most being determined in around six months).
There was concern, therefore, in some circles in early September that infrastructure planning reforms announced needed to be fleshed out and go further. But then Kwasi Kwarteng’s mini-budget landed. It promises sweeping reforms including “reducing the burden of environmental assessments; reducing bureaucracy in the consultation process; reforming habitats and species regulations; and increasing flexibility to make changes to a DCO” post-submission.
To boot, the government’s Growth Plan published as part of the mini-budget commits to “bringing onshore wind planning policy in line with other infrastructure to allow it to be deployed more easily in England” and also includes a non-exhaustive list of 138 projects which should be accelerated.
The government’s own justification for such sweeping reforms is that “the UK’s planning system is too slow and too fragmented”, noting that the timespan for nationally significant infrastructure projects increased by 65% between 2012 and 2021. It is to be noted that a significant part of the delays come from the decision stage which lay squarely in the purview of government (indeed, the period for drafting recommendation reports has only been extended once, across the 110 or so projects which have passed the application stage).
What might these sweeping reforms look like? Well, we have to wait for the detail but here are things which could be covered given the government has said that they want to reduce burdens at the environmental assessment, consultation and post-submission stage.
On environmental assessments, I recently discovered that the environmental statement for the Jubilee Line Extension was 241 pages. By contrast, it is not uncommon for Environmental Statements in 2020s to include tens of thousands of pages. The government already has plans to replace the environmental impact assessments required with Environmental Outcome Reports (EORs). The provisions in the Levelling Up and Regeneration Bill do not yet indicate that EORs would be any more streamlined than Environmental Statements.
Any streamlining needs to grapple with whether there is any ‘regression’ in environmental standards (both for the purposes of the Environment Act 2021 and also for the purposes of our international trade agreements). Government may also wish to look at non-environmental documents: comparing 2011 with 2021, there has been roughly a 50% increase in documents submitted as part of DCO applications and examinations.
On consultation, it has become the norm for promoters to carry out more than one consultation, and it is increasingly common for consultations to last longer than the statutory period of 28 days. Government may wish to tighten up the statutory guidance if it does not consider such steps to be necessary. Another idea might be to amend the statutory guidance so that it explicitly acknowledges that the examination itself is a mechanism to allow views to be heard.
On flexibility post-submission, there are various things which the government could consider. DCO drafting which explicitly acknowledges that changes can be pursued provided the project remains within its environmental envelope should be encouraged. Provisions in Hybrid Bills (now Acts) which allow for the correction of errors without going through the planning process anew should be adopted in DCOs, as should an express acknowledgement that there should be no maximum capacity limitations on renewable energy projects.
All of these are mere ideas; the detail behind the government’s ideas remains to be seen. But perhaps the one aspect which is more difficult to change will be the intangible culture and norms around infrastructure planning: will developers welcome these reforms, or is the wider economic uncertainty more likely to drive their behaviour? Will various secretaries of state recognise the delays caused by their predecessors at the decision stage? Will statutory stakeholders recognise the desire for quick decision making, even where they object? Let’s see!
*Mustafa Latif-Aramesh is legal director at BDB Pitmans
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