Introduction to National Infrastructure Planning Guidance
Provides an introduction to National Infrastructure Planning Guidance.
Applies to England
The purpose of this guidance
The Planning Act 2008 (as amended) (“the Planning Act”) creates a separate consenting route for major infrastructure projects in the fields of energy, transport, water, wastewater, and waste – termed Nationally Significant Infrastructure Projects (NSIPs).
To qualify as an NSIP, a proposed project must meet certain thresholds defined in Part 3 of the Planning Act (the Secretary of State may add to/amend these thresholds by Order). Provision is also made under section 35 of the Planning Act for the Secretary of State to issue a direction, the effect of which is to bring other projects into the remit of the NSIP consenting process.
NSIPs require development consent from the relevant Secretary of State rather than planning permission from the local planning authority.
In broad terms, the Planning Act provides for the following process:
- a front-loaded approach where the developer consults on a proposed application before submitting that application to the Planning Inspectorate (acting on behalf of the Secretary of State);
- if the application is accepted by the Planning Inspectorate (in accordance with the requirements of the Planning Act and accompanying secondary legislation), it will then be handled by a single Inspector or a panel of Inspectors from the Planning Inspectorate who constitute the Examining Authority for the purposes of examining and reporting on the application;
- on completion of the examination, the Examining Authority provides a recommendation to the relevant Secretary of State(s) which includes the Examining Authority’s findings, conclusions on important and relevant matters as well as a draft proposed Development Consent Order (DCO);
- the relevant Secretary of State will decide whether development consent should be granted for the NSIP and if so, the approved form of the DCO.
Where the relevant Secretary of State proposes to grant consent for an NSIP, this will be through a DCO (which is typically made as a statutory instrument (SI) – a form of secondary legislation). The DCO not only provides consent for the project but may also incorporate other consents and licences and may include authorisation for the compulsory acquisition of land (if certain tests are met). The DCO will specify the details of the development consented and any requirements (similar to planning conditions) that must be met in implementing the consent.
Paragraph: 001 Reference ID: 01-001-20240417
Published: 17/04/2024
What is the role of National Infrastructure Planning Guidance?
The NSIP consenting process introduced by the Planning Act has been in operation now for over a decade, and several changes to it have been made in that time. To support the legislation, a range of guidance documents have been issued by the former Department for Communities and Local Government and successor departments. As part of operational reforms to make the NSIP consenting process faster, more transparent and easier for all stakeholders to navigate, National Infrastructure Planning Guidance (“guidance”) has been comprehensively reviewed and updated. This takes into account the experience gained from handling a large number of applications for development consent. It also provides additional guidance to support those new legislative measures, processes and practices that have been introduced as part of the NSIP reforms.
The revised guidance reflects knowledge of good practice, changing circumstances and feedback from users on its clarity and helpfulness. It has been developed with input from across government, industry, and a wide range of stakeholders, and builds on responses received as part of the government’s consultation on the operational reform of the NSIP process in 2023.
The format of the guidance adopts similar approaches to the Planning Practice Guidance that supports the National Planning Policy Framework. This enables more frequent updates to reflect changes to the system and build on experience gained as reforms to the process take effect. This includes a move towards a webpage format to provide greater searchability, consistency and accessibility across guidance for all users of the system.
The revised guidance is structured around the main stages involved in preparing an NSIP:
- Stage 1 – Pre-application
- Stage 2 – Acceptance
- Stage 3 – Pre-examination
- Stage 4 – Examination
- Stage 5 – Recommendation
- Stage 6 – Decision
- Stage 7 – Post Decision
Other guidance supplements and explains in further detail particular aspects of the National Infrastructure Planning process:
- Fast-Track
- Content of a Development Consent Order
- Fees, Cost Recovery & Planning Performance Agreements
- Compulsory Acquisition
- NSIPs and Housing
- Process for carrying out a review of existing National Policy Statements
- Glossary
Each new guidance section explains where existing guidance has been superseded, otherwise the existing guidance remains valid. All current guidance is published on the National Infrastructure Planning Guidance Portal.
Paragraph: 002 Reference ID: 01-002-20240417
Published: 17/04/2024
Who is this National Infrastructure Planning Guidance for?
This guidance is aimed at everyone who is involved in the NSIP consenting process, including applicants, legal advisers, statutory consultees, local authorities, government departments, local communities and other interested parties and individuals involved in the consenting process or specific NSIPs.
Paragraph: 003 Reference ID: 01-003-20240417
Published: 17/04/2024
Is National Infrastructure Planning Guidance statutory?
The National Infrastructure Planning Guidance is non-statutory except where it applies to the pre-application stage and to cost recovery by certain public authorities. In these instances, guidance is statutory pursuant to:
- section 50 of the Planning Act and prospective applicants must have regard to it; and
- section 54A of the Planning Act and prescribed public authorities must have regard to it.
The extent to which an applicant has had regard to section 50 guidance will be taken into account by the Planning Inspectorate when deciding whether to accept an application for examination.
The guidance is a comprehensive guide to the operation of the NSIP consenting process under the Planning Act and should be read alongside the relevant legislation.
Nothing in this guidance should be taken as indicating that any requirement of law may be overridden. The guidance does not in any way replace the statutory provisions of the Planning Act or associated secondary legislation, nor does it add to their scope. Only the courts can give an authoritative interpretation of legislation. If required, users of this guidance must therefore take their own professional and legal advice about the interpretation of the legislation.
Paragraph 004 Reference ID 01-004-20240417
Published: 17/04/2024
What legislation is relevant to the Nationally Significant Infrastructure Project consenting process?
The Planning Act 2008 has been amended principally through the Localism Act 2011. Other further amendments include those made by the Growth and Infrastructure Act 2013, the Housing and Planning Act 2016 and the Levelling Up and Regeneration Act 2023.
The principal and relevant statutory instruments made under the powers in the Planning Act have also been substantially amended, and the instruments currently include:
- The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (as amended)
- The Infrastructure Planning (Compulsory Acquisition) Regulations 2010 (as amended)
- The Infrastructure Planning (Examination Procedure) Rules 2010 (as amended)
- The Infrastructure Planning (Decisions) Regulations 2010 (as amended)
- The Infrastructure Planning (Fees) Regulations 2010 (as amended)
- The Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011 (as amended)
- The Infrastructure Planning (Business or Commercial Projects) Regulations 2013
- The Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (as amended)
- The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (as amended)
Paragraph 005 Reference ID 01-005-20240417
Published: 17/04/2024
How are updates to National Infrastructure Planning Guidance communicated?
To ensure guidance remains up to date and reflects relevant legislation, policy and case law, as well as any changing circumstances or advancements in sector technologies, it will be reviewed as necessary. To make this easier, the guidance includes a paragraph number and unique reference ID as well as the date on which the guidance was published.
All users of guidance are encouraged to check when preparing application documents that the most up to date guidance, and paragraphs within that guidance where appropriate, are referenced where necessary. The National Infrastructure Planning Guidance Portal provides an up-to-date summary of what guidance is in force and what guidance is due to be revised and an approximate date for its publication. The Portal also enables users to sign up to updates so that they can be kept informed of any changes.
Transitional arrangements
There may be occasions when guidance is revised when applicants have already commenced their statutory pre-application consultation or after an NSIP application has been submitted for acceptance or is in pre-examination or examination. It is not the intention for revisions to guidance to compromise the preparation or progress of applications which are already well underway.
Paragraph 006 Reference ID 01-006-20240417
Published: 17/04/2024
What is the relationship between National Infrastructure Planning Guidance and the Planning Inspectorate’s Advice?
The Planning Inspectorate carries out certain functions related to the NSIP consenting process on behalf of the Secretary of State. In addition to guidance issued by the Secretary of State, the Planning Inspectorate publishes advice that is intended to inform applicants, consultees, statutory bodies, the public and others about a range of operational matters in the preparation, structure, content, and presentation of applications made under the Planning Act. The advice covers topics such as the preparation of Local Impact Reports by local authorities and Habitats Regulations Assessments where they are required, and therefore perform a different but complementary function to this guidance.
In many cases the advice includes recommendations from the Planning Inspectorate about approaches to particular matters of process. These include the level of information that is likely to be required to be provided to the Examining Authority to give an adequate understanding of the application, and where feasible facilitate the timely resolution of key issues typically arising in the examination of certain types of development.
The Planning Inspectorate’s advice is drawn from good practice and whilst it is non-statutory applicants and others are encouraged to consider it carefully and follow the recommendations, however it is not a requirement to have regard to this advice if there are sound reasons not to do so, and these are fully explained and justified in the application documents.
Paragraph 007 Reference ID 01-007-20240417
Published: 17/04/2024