Nationally Significant Infrastructure Projects : Advice on working with public bodies in the infrastructure planning process
This advice is intended to explain the generic aspects of the public bodies involvement with the applicant and the Planning Inspectorate during the Nationally Significant Infrastructure Project (NSIP) process.
Applies to England and Wales
The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 .
This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning system and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.
What is a public body?
A public body is a formally established organisation that is publicly funded to deliver a public or government service. The Planning Inspectorate has provided separate Advice for Local Authorities which includes information about the role of local authorities in the NSIP process.
Public bodies in the NSIP process:
- have a role as statutory consultees
- may have parallel consenting powers to grant consents (other than development consent), or other authorisations that may be required for the construction, use or operation of a NSIP
They have an important role providing expert advice on a proposed NSIP throughout the process, from early pre-application engagement, the provision of examination evidence and in relation to post consent activities. Public bodies can help the applicant with the early identification and mitigation of impacts associated with NSIPs.
There are separate annexes to this advice which provide more detail about the specific roles of individual public bodies in the NSIP process and their interaction with the Planning Inspectorate:
Annex A: Cyfoeth Naturiol Cymru / Natural Resources Wales
Annex B: Marine Management Organisation
Annex G: The Health and Safety Executive
Annex H: Evidence Plans for Habitats Regulations Assessments
The annexes include information about:
- the specific role of the relevant public body and the interactions with the role of the Planning Inspectorate
- specific high-level agreements and arrangements
- relevant contact points
- a list of relevant consents or other authorisations that apply, and considerations relating to how those interact with the NSIP process
Further information about consulting with these public bodies is provided in the Planning Inspectorate’s Advice on Environmental Impact Assessment Notification and Consultation.
Public bodies and the NSIP process
There are 6 stages to the NSIP process. Further information about each stage of the process is provided in Planning Inspectorate’s Advice for members of the public – The stages of the NSIP process and how you can have your say.
Following an operational review of the NSIP system the government published a reform Action Plan. The government then consulted on the operational changes proposed in the Action Plan and published a response to the consultation in March 2024. To support the reforms legislation has been amended and the government has published new and updated guidance. The Planning Inspectorate has developed a new pre-application service to support the government’s reforms. See the Planning Inspectorate’s Pre-application Prospectus for further information.
Amongst other matters the adopted reforms will enable the following public bodies to charge applicants for the planning services they provide for NSIPs:
- The Environment Agency
- Natural England
- Natural Resources Wales
- The Coal Authority
- The Health and Safety Executive
- National Highways
- Marine Management Organisation
- Historic Buildings and Monuments Commission for England
The government’s Guidance on the updated Infrastructure Planning (Fees) Regulations 2010 provides further information about cost recovery for these public bodies and the Planning Inspectorate.
Summary of how public bodies may be involved at each stage of the NSIP process
The applicant is responsible for accessing the resources of the relevant public bodies and ensuring that they obtain the services they require for producing a well prepared NSIP application. Some of the involvement in this summary will be subject to cost recovery by the relevant public bodies.
| Stage | Actions |
|---|---|
| Pre-application | Engage with the applicant early in the process to understand the project, contribute to the preparation of their programme document and respond to any non-statutory consultation undertaken by them |
| Where requested, provide the applicant with advice on matters under The Conservation of Habitats and Species Regulations 2010 and / or The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 | |
| Respond to the Planning Inspectorate’s request for comments on the scope of the Environmental Impact Assessment (EIA). Engage with the applicant on the preparation of their Environmental Statement | |
| Consider the applicant’s draft Development Consent Order (DCO), including requirements | |
| Consider the content of any relevant control documents, such as draft Environmental Management Plans | |
| Respond to the applicant’s statutory consultation within the deadline given by the applicant for comments | |
| Maintain a Principal Areas of Disagreement Summary Statement (PADSS) as necessary | |
| Engage with the applicant on the preparation of a Statement of Common Ground (SOCG) | |
| Make arrangements for joint working with other public bodies (and other consultees) as necessary | |
| Pre-examination | Submit a relevant representation to the Planning Inspectorate by the deadline given |
| Respond to the Examining Authority’s invitation to the preliminary meeting (Rule 6 notice) within the deadline given and make arrangements to attend as necessary | |
| Respond as necessary to any procedural decisions made by the Examining Authority, such as providing any further information requested or confirming attendance at any early hearings | |
| Consider the draft examination timetable provided by the Examining Authority and provide comments if requested | |
| Continue to maintain a PADSS as necessary | |
| Continue to engage and negotiate with the applicant, for example on a SOCG | |
| Examination | Submit the following by the deadline given in the examination timetable: |
| · written representation | |
| · answers to the Examining Authority’s written questions | |
| · comments on the applicant’s draft DCO | |
| · comments on representation or submissions made by other parties, including the applicant | |
| · comment on the Examining Authority’s ‘report on the implications for European sites’ (RIES) as necessary | |
| Respond as necessary to any procedural decisions made by the Examining Authority, including any requests for further information | |
| Respond to the Examining Authority’s notification of any hearings or accompanied site inspections within the deadline given and make arrangements to attend as necessary | |
| Continue to engage and negotiate with the applicant, for example on a SOCG | |
| Recommendation and Decision | At this stage the public body can respond as necessary to any consultations issued by the Secretary of State |
| Post Decision (When development consent is granted) | Carry out actions as required in relation to discharging the requirements of the DCO |
| Monitor the works as required by the DCO as necessary | |
| Carry out enforcement actions as necessary | |
| Respond to any notifications of a material or non-material change to the DCO |
Pre-application
Pre-application engagement and consultation is fundamental to the NSIP process. The applicant is required to consult a wide range of people and organisations at the pre-application stage, including the public bodies featured in the annexes to this advice.
The applicant should request any necessary technical information from public bodies at an early stage. This will allow them to consider mitigation for negative effects and potential opportunities to secure environmental enhancements when preparing their application.
The applicant may ask public bodies for advice on matters under The Conservation of Habitats and Species Regulations 2010 and / or The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017. The Planning Inspectorate has published separate advice on these subjects. See the Planning Inspectorate’s Advice on Habitats Regulations Assessment and Advice on the Water Framework Directive.
Environmental issues arising from the Environmental Impact Assessment (EIA), Habitats Regulations Assessment (HRA), Flood Risk Assessment (FRA) and so on may be recorded by the applicant in an ‘evidence plan’.
Public bodies should respond to the applicant’s requests for advice as promptly and comprehensively as possible, taking into account their own service offering and the agreed programme document (see the Planning Inspectorate’s Pre-application Prospectus).
Full and meaningful consultation and engagement, before the submission of an application, should result in a smoother pre-application experience for all stakeholders, lead to a well-prepared application including necessary and relevant detailed information and reduce the risk of changes to the application being proposed at too late a stage in the NSIP process (see paragraph 018 of the government’s Guidance on the examination stage for Nationally Significant Infrastructure Projects).
At the Pre-application stage, where possible, the Planning Inspectorate encourages public bodies (and other consultees as necessary) with related areas of responsibility to work jointly and co-ordinate responses both to the applicant and the Planning Inspectorate.
Public bodies can refer to the Planning Inspectorate’s Advice to Local Authorities for information about how they should engage with the applicant and the Planning Inspectorate on the following:
- a Principal Areas of Disagreement Summary Statement (PADSS)
- a Statement of Common Ground (SOCG)
- submitting a relevant representation to the Planning Inspectorate by the deadline given
- responding to the Examining Authority’s invitation to the preliminary meeting (Rule 6 notice) within the deadline given and making arrangements to attend as necessary
- responding as necessary to any procedural decisions made by the Examining Authority, such as providing any further information requested or confirming attendance at any early hearings or site inspections
- considering the draft examination timetable provided by the Examining Authority and providing comments if requested
- submitting the following by the deadline given in the examination timetable:
- written representation
- answers to the Examining Authority’s written questions
- comments on the applicant’s draft DCO
- comments on representation or submissions made by other parties, including the applicant
Environmental Impact Assessment (EIA) Scoping Opinion
The applicant may ask the Planning Inspectorate (who will act on behalf of the Secretary of State) for a formal written opinion about the information they should include in their environmental statement. This is known as a scoping opinion.
The applicant will send a scoping report to the Planning Inspectorate (known as the scoping request) who will publish it on the project information page of the Find a National Infrastructure Project website. The Planning Inspectorate must adopt a scoping opinion within 42 days of receiving the scoping request. The Planning Inspectorate will consult the relevant public bodies as identified consultees on the scoping report (for further detail on consultation and notification please see the Planning Inspectorate’s Advice on Environmental Impact Assessment Notification and Consultation). They will invite them to respond within 28 days to allow the Planning Inspectorate time to consider the responses before the deadline for adopting the scoping opinion. If a public body does not respond to an EIA scoping consultation request within the defined statutory deadline, the Planning Inspectorate will assume that they do not have comments to make on the information to be provided in the applicant’s environmental statement.
The applicant should avoid combining consultation required by section 42 of the Planning Act 2008 with a request for an EIA scoping opinion. This is because it will result in more than one form of consultation taking place at the same time leading to confusion. This may ultimately frustrate the NSIP process.
The applicant’s preparation of their environmental statement
If the proposed NSIP is EIA development the applicant must include an environmental statement when they submit their application.
Regulation 11 of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 describes the process which consultation bodies, including public bodies, must follow to engage with the applicant when they are preparing their environmental statement. Further detail is provided in the Planning Inspectorate’s Advice on Environmental Impact Assessment Notification and Consultation.
The applicant is responsible for ensuring their environmental statement is adequate. If, during the acceptance stage the environmental statement is not deemed to be compliant with Regulation 14 of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, the application will not be accepted. If it comes to light during the examination stage that the environmental statement is inadequate consideration of the application could be suspended pending receipt of further information (see Regulation 20 of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017). It is therefore important that public bodies and the applicant work together at the pre-application stage to reduce these risks. The applicant should also ensure that all the relevant consents which are required to enable construction and operation of their NSIP are set out in the environmental statement. Public bodies should assist the applicant in meeting these obligations when requested.
Consents and authorisations
Some public bodies may have powers to grant consents (other than development consent) or other authorisations that may be required for the construction, use or operation of a NSIP.
Certain consents or authorisations can be included in the Development Consent Order (DCO), or they can be consented separately. Section 150 of the Planning Act 2008 confirms that these consents can only be included in a DCO if the relevant consenting body agrees to their inclusion.
The applicant will need to engage with public bodies, and any other relevant consultees that have consenting powers, early in the pre-application stage. The applicant’s programme document should include details about the timing of applications for separate consents or authorisations, and / or engagement with the relevant bodies to obtain agreement for inclusion of consents or authorisations in the DCO.
Where consents or authorisations are to be included in a DCO, the applicant should time their engagements with the relevant bodies to enable agreement on matters as much as possible at the pre-application stage.
Where the applicant has decided to apply for consent or authorisation separately they should provide a ‘schedule of consents’ with their application setting out:
- all consents and authorisations required alongside the DCO
- which body is responsible for granting consent or providing authorisation
- the proposed timeline for applying for the consents and authorisations and how that aligns with the NSIP process.
- up-to-date details of the status of progress on each consent or authorisation application
The timing of decisions on these consents and authorisations may have an important impact on the examination of the application and should be considered carefully. Government policy on this point, as set out in the National Policy Statements, will be an important consideration in this respect.
Public bodies and other consultees should assist the applicant in compiling a comprehensive and accurate schedule. Greater detail on the interaction between the Planning Act and specific, relevant consents and authorisations required under other legislation are set out in the annexes to this advice as they apply to individual public bodies. Specific considerations are also likely to apply in individual cases.
Deemed consents
The applicant may choose to apply to the Marine Management Organisation (MMO) for a Marine Licence, or they may choose to have the Marine Licence deemed by the DCO made by the Secretary of State - a Deemed Marine Licence (DML). The inclusion of a DML in a DCO does not require the approval of the relevant consenting body (unlike section 150 consents).
The applicant will need to decide at the pre-application stage whether they will apply separately for such consent or have it deemed by a DCO. Their decision should be reflected in their programme document as appropriate.
Harbours
The applicant will decide if their NSIP application should include:
- provisions for creating a harbour authority
- provisions for changing the powers or duties of a harbour authority
A DCO may also make other provisions in relation to a harbour authority.
The MMO may also separately deal with Harbour Order applications unless the development of the harbour itself is a NSIP or an integral part of a NSIP. See section 33(2) of the Planning Act 2008 for further information. Although it is for the applicant to decide which route is the most appropriate for their NSIP, it should be noted that there is no Secretary of State / MMO dual jurisdiction in relation to the same set of works (see section 120(9)(a) of the Planning Act 2008).