Guidance

Planning Act 2008: Pre-application stage for Nationally Significant Infrastructure Projects

Guidance on the pre-application stage for Nationally Significant Infrastructure Projects.

From:
Ministry of Housing, Communities and Local Government and Department for Levelling Up, Housing and Communities
Published
30 April 2024

Applies to England

Pre-application process

The purpose of this guidance

This National Infrastructure Planning Guidance (“guidance”) sets out the requirements and expectations in the preparation of an application for development consent. It aims to:

  • advise all those likely to be involved in the pre-application stage of Nationally Significant Infrastructure Projects (NSIP) about the processes;

  • guide applicants (and potential applicants) as to how the pre-application requirements of the Planning Act 2008 (as amended) (“the Planning Act”) should be met and provide advice on good practice to seek continuous improvement in the quality of applications;

  • guide applicants (and potential applicants) as to how the pre-application requirements of the Infrastructure Planning (Environmental Impact Assessment Regulations) 2017 (as amended) (“the EIA Regulations 2017”) should be met;

  • inform the main participants in National Infrastructure Planning, including the Planning Inspectorate and consultees such as statutory bodies and local authorities, of their roles in the pre-application process, and ensure that they are clear what is expected of them;

  • provide advice on what is expected of an application for development consent to enable it to be accepted for examination; and

  • help ensure that the pre-application process is transparent and accessible to all.

Under section 50 of the Planning Act, the guidance covering pre-application procedures is statutory and applicants must have regard to this. The Planning Inspectorate, who decide on behalf of the Secretary of State under section 55 of the Planning Act whether or not to accept an application for examination, will in turn pay particular regard to the extent to which this guidance has been considered and followed as appropriate by applicants. This is explained more fully in sections of this guidance covering acceptance and pre-examination.

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What infrastructure schemes can be considered under the Planning Act 2008?

The Planning Act 2008 has created a separate planning process for major infrastructure projects in the fields of energy, transport, water, wastewater, and waste – termed Nationally Significant Infrastructure Projects (NSIPs). NSIPs receive development consent from the relevant Secretary of State rather than planning permission from the local planning authority.

To qualify as an NSIP, a proposed project must meet certain thresholds 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.

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What is a Section 35 direction?

The Secretary of State may give a direction under section 35(1) of the Planning Act for certain projects to be treated as NSIPs, if the proposed project is considered by the Secretary of State to be nationally significant and subject to certain requirements in sections 35 and 35ZA of the Planning Act. The proposed project must be within the sectors set out in section 35(2) of the Planning Act, which include energy, transport, water, wastewater or waste, or a business or commercial project listed in the Schedule to the Infrastructure Planning (Business or Commercial Projects) Regulations 2013.

Where the proposed project is not subject to an application for a consent or authorisation mentioned in section 33(1) or (2) of the Planning Act (see section 35ZA of the Planning Act), a section 35 direction can only be made in response to a ‘qualifying request’. Further detail is provided in the policy statement on the Extension of the nationally significant infrastructure planning regime to business and commercial projects (PDF, 22KB).

If such a direction is given, as part of that the Secretary of State should make a judgement about how long such a direction should remain in force to enable progress to be made on the proposed application. This guidance expects a reasonable time limit for such directions to be around 5 years.

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What is the purpose of the pre-application stage?

The NSIP consenting process is intended to be front-loaded. The pre-application stage is therefore critical and should be used to ensure project proposals are prepared in line with applicable National Policy Statements (NPS) designated under Part 2 of the Planning Act. Relevant legislation and policies should also be taken into consideration where applicable to the proposed project. The pre-application stage should allow the likely effects of a project to be fully consulted upon, with the design of the project evolving up to the point of application submission.

The overriding objective of this guidance is to encourage a pre-application process which is effective and proportionate to the nature of the proposed project. This must ensure that the legal requirements of the Planning Act and the EIA Regulations 2017 are met, particularly involving consultation stages and the early consideration of alternatives. At the same time, pre-application processes should not be unnecessarily time-consuming and burdensome for the applicant, consultees and communities affected by the proposal.

Pre-application work should seek to develop well prepared applications which can then proceed through an efficient examination within the maximum 6 months provided for by section 98(1) of the Planning Act, with a report and recommendation delivered to the Secretary of State within the maximum 3 months under section 98(3) of the Planning Act and a decision taken within the statutory 3 months provided for by section 107 of the Planning Act.

Chapter 2 of Part 5 of the Planning Act sets out statutory requirements for applicants to engage in pre-application consultation with local communities, local authorities, statutory consultees and those who would be directly affected by the project. This includes the Marine Management Organisation, in any case where the proposed development would affect, or would be likely to affect, any of the areas specified in section 42(2) of the Planning Act. The front-loaded emphasis on consultation in the NSIP consenting process is designed to ensure a good standard of preparation of applications enabling efficient acceptance and post-acceptance stages.

The Planning Inspectorate has a major role in providing case-specific pre-application advice to applicants, the public, and other users of the NSIP consenting process. Further details of the pre-application service to applicants are set out in the section below: Support from the Planning Inspectorate and in the Planning Inspectorate’s Pre-Application Prospectus (to be published Spring 2024).

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How is the pre-application stage structured?

The pre-application stage includes work that an applicant will undertake to prepare their application through to its submission to the Planning Inspectorate. Key statutory milestones during pre-application include:

  • consultation on, and publication of, a Statement of Community Consultation (SoCC);
  • where applicable, preparation of a screening opinion, scoping opinion and preliminary environmental information associated with any Environmental Statement to be submitted as part of the application;
  • notification of the proposed application to the Planning Inspectorate acting on behalf of the Secretary of State;
  • statutory consultation with specified bodies, any persons with interests in the affected land, and communities;
  • preparation of a consultation report; and
  • submission of the application documentation to the Planning Inspectorate.

Pre-application as described in this guidance spans both statutory requirements, and recommended practice to prepare a good application working with expert bodies and the local community. This guidance therefore encourages good quality engagement and project development work from the outset, alongside the applicant’s duty to notify the Planning Inspectorate acting on behalf of the Secretary of State of its intention to submit an application. The formal pre-application stage should then run from the Inception Meeting with the Planning Inspectorate through to submission of the application at the acceptance stage.

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What statutory requirements does the applicant need to comply with during the pre-application stage?

During the pre-application stage an applicant must:   

Further statutory requirements under other legislation may also exist, depending on the nature of the proposed NSIP.

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What is the timescale for pre-application and when does it start?

Applicants will normally carry out preparatory work of project development, including informal early engagement with local communities, local authorities and statutory consultees prior to the formal start of the pre-application stage of the NSIP consenting process.

There is no prescribed period of time for the pre-application stage. The amount of work involved in preparation and consultation will vary, driven by the complexity of the proposed NSIP, the time necessary to address issues raised in the preparation of the application, and other factors including any surveys necessary for an environmental impact assessment.

Nonetheless, evidence suggests that the average timeframe for the pre-application stage is 2 years, and this is therefore taken as the benchmark. This is measured from the date of the Inception Meeting between the applicant and the Planning Inspectorate and the receipt of the application for acceptance by the Planning Inspectorate.

Where an applicant is plainly making little or no progress towards submission of an application, the Planning Inspectorate may advise removal of the proposed application from the ‘Register of applications’ on the National Infrastructure Planning website managed by the Planning Inspectorate.

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What is the Inception Meeting with the Planning Inspectorate?

The purpose of the Inception Meeting is for the applicant to discuss with the Planning Inspectorate their Programme Document, which sets out the intended programme for the pre-application stage and what work and studies are required for the preparation of an application. This Inception Meeting should include discussion of any anticipated requests for screening or scoping to help inform decisions on the right level of pre-application service to be provided by the Planning Inspectorate.

In most cases applicants will need to engage statutory consultees and others early in the preparation of applications. Separate guidance on cost recovery explains where and how the Planning Inspectorate and some statutory consultees may recover costs for the services they provide in relation to NSIP applications / proposed applications.

Before commencing statutory consultation under section 42 of the Planning Act, section 46 of the Planning Act requires an applicant to notify the Planning Inspectorate acting on behalf of the Secretary of State of their intention to make an application for development consent, and it must supply information in relation to the proposed application. This will be recorded and published by the Planning Inspectorate on the appropriate project page of the National Infrastructure Planning website. Where an applicant has not yet submitted a request or notification under Regulation 8 of the EIA Regulations 2017, they can ask the Planning Inspectorate to delay publication of early project discussions by up to 6 months (further advice is provided in the Planning Inspectorate’s Pre-application Prospectus - to be published Spring 2024).

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What is the purpose of the Programme Document?

The pre-application process is applicant-led. To deliver a good pre-application process, including effective engagement and a well-prepared application, applicants should put together a Programme Document at the outset of the pre-application stage for submission to the Planning Inspectorate and agreement at the Inception Meeting. The Programme Document is an essential element of the quality standard for applications seeking a fast-track route to consent.

The Programme Document will enable all those engaged in the pre-application process, particularly statutory consultees, to understand the timescales and ensure their contribution is programmed into the pre-application stage at the most effective point. It will also assist the applicant in managing the preparation and subsequent submission of the application documents for consideration by the Planning Inspectorate at the acceptance stage.  

Following the Inception Meeting, it is expected that the applicant will host and maintain the agreed Programme Document on its website, and update it as necessary during the pre-application period to publicise completion of significant stages and demonstrate progress in preparation of the application. 

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What should the Programme Document contain?

The Programme Document is not a statutory requirement and is not for consultation apart from agreement with the Planning Inspectorate. It should set out the timetable and activities necessary for an effective pre-application process including the level of pre-application services from the Planning Inspectorate, and consultation with various parties required under the Planning Act.

The Programme Document should include:

  • the date the applicant intends to submit their application;
  • a comprehensive timetable of the applicant’s pre-application process, the main events with dates and milestones demonstrating how the pre-application process will be completed (using the maximum target of 2 years as a benchmark);
  • the applicant’s view on the main issues for resolution and activities they will undertake to address those;
  • the applicant’s proposals for engaging with statutory consultees and local authorities during the pre-application period and any intended financial support agreements, such as Planning Performance Agreements (PPAs);
  • the applicant’s identification of risks to achievement of the pre-application stage and the process by which these risks are tracked and managed; and
  • cross references to the SoCC required by section 47 of the Planning Act.

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Key considerations in preparing an application

How should Environmental Impact Assessment (EIA) be considered in preparing an application?

Major infrastructure projects will normally be of a size, scale and nature that they will constitute Environmental Impact Assessment (EIA) development described within the terms of the EIA Regulations 2017. An applicant cannot begin to carry out statutory consultation under section 42 of the Planning Act until they have taken the necessary steps under Regulation 8 of the EIA Regulations 2017 to establish whether an EIA is required.  

Where the proposed development is determined to be EIA development, an applicant will need to submit an Environmental Statement along with their application. Although it is not mandatory, an applicant can request the Planning Inspectorate on behalf of the Secretary of State to provide an opinion on the scope of the Environmental Statement (the ‘scoping opinion’) i.e. what the assessment does, and does not, need to consider. Such a request must be accompanied by the information provided by the applicant required by Regulation 10 of the EIA Regulations 2017 in order that the Planning Inspectorate can make a fully informed view and respond within 42 days.

The scoping opinion will take into account advice received from statutory consultees and other relevant organisations following the required consultation over a 28-day period within the 42 days. Any potential for transboundary effects must also be considered. The scoping opinion will confirm the programme of data collection and studies to be undertaken by the applicant, and contain recommendations where there is no need to explore certain topics (based on the information submitted at that time).  

There has been an increasing tendency for Environmental Statements to become excessively detailed and take an overly cautious approach by including material on a range of topics, whether strictly relevant or not. This makes for inaccessible and cumbersome Environmental Statements which are counterproductive in identifying clearly the actual likely environmental effects from the proposal, which become buried in a mass of documentation. Applicants should adopt a proportionate approach in the type and volume of information they request from statutory bodies during the preparation of their Environmental Statements to meet the requirements of Regulations 5, 14 and Schedule 4 of the EIA Regulations 2017

At the same time, applicants also have to consider the level of detailed information which is actually available to enable the environmental effects to be assessed and included in the Environmental Statement. Applicants often naturally seek flexibility and may choose to describe the proposal in terms of the maximum parameters of the proposal and the establishment of a worst-case scenario for environmental assessment. The ‘Rochdale Envelope’ is now a well-established part of the approach to striking this balance.

Applicants should always provide sufficiently robust and detailed data of the effects of the proposed development on the environment, so that these can be considered throughout the NSIP consenting process. Taking the Rochdale Envelope approach increases the spatial extent of the project, and will therefore increase the amount of evidence required to be submitted in support of the application. It is not an excuse to submit applications with insufficient supporting survey material. This can lead to an inadequate Environmental Statement and risk non acceptance of the application for examination.  

Regulation 14 of the EIA Regulations 2017 requires that an Environmental Statement includes a description of the reasonable alternatives studied by the applicant, and an indication of the main reasons for the option chosen, including a comparison of the effects of the development on the environment (Schedule 4 of the EIA Regulations 2017). Inadequate consideration of alternatives has been used as a vehicle for legal challenge. Alternatives can range from matters such as micro-siting (where the development is located within the site) and alternative access points, to the size and scale of development, technological and design options. Applicants are advised to fully document all optioneering exercises and decision-making on alternatives from the inception of their projects in their application, and reference this appropriately in their Environmental Statement.  

Regulations 11 to 13 of the EIA Regulations 2017 set out the pre-application publicity and consultation requirements for the EIA process pursuant to sections 47 and 48 of the Planning Act. Where there are obligations upon the Secretary of State, these are carried out by the Planning Inspectorate: 

  • Regulation 11 of the EIA Regulations 2017 requires the Secretary of State to notify the prescribed consultation bodies of their duty to consult with the applicant and make any information relevant to the preparation of the Environmental Statement available to the applicant (if requested to do so by the applicant). It also requires the Secretary of State to provide the applicant with a list of those notified consultation bodies;

  • Regulation 12 of the EIA Regulations 2017 requires that the applicant’s SoCC must state whether the project constitutes EIA development and, if it does, how the applicant intends to publicise and consult on preliminary environmental information (PEI); and

  • Regulation 13 of the EIA Regulations 2017 requires that publicity of project proposals under section 48 of the Planning Act must also encompass the requirements of the EIA process and at the time of publishing the proposed application, applicants must notify all the notified consultation bodies.

Applicants need to give consultation bodies sufficient information about the characteristics of the proposed NSIP in order to enable them to respond in an effective and timely way about the likely environmental effects and avoid unnecessary delay. Applicants should discuss providing digital material where possible with relevant statutory consultees.

Part 6 of the Levelling-up and Regeneration Act 2023 contains provisions to replace the current Strategic Environmental Assessment (SEA) and EIA requirements with a new regime of Environmental Outcome Reports (EOR). Until the EOR regulations are in place to commence this new regime, the existing arrangements for environmental assessment remain in place and this guidance should be followed accordingly.

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How should Preliminary Environmental Information (PEI) be prepared?

Where an NSIP is determined to be EIA development in line with Regulation 8 of the EIA Regulations 2017 the applicant is required by Regulation 12 of the EIA Regulations 2017 to publish sufficient Preliminary Environmental Information (PEI) to enable consultees to develop an informed view of the likely significant environmental effects of the proposed development. The information required will be different for different types and sizes of projects and it may also vary depending on the audience of a particular consultation.

Applicants are advised to consult any relevant existing environmental assessments or survey information, in the first instance to get an idea of what environmental effects could arise. The key issue is that the information presented must be clear to all consultees, even if it is of specialised technical nature. As required by Schedule 4 of the EIA Regulations 2017 any difficulties or areas of uncertainty such as in data collection, forecasting methods or scientific knowledge must be identified and acknowledged.

There is no prescribed format for PEI. However, depending on the availability of material, applicants are encouraged to prepare this as an early draft of the Environmental Statement and include it as such as part of the statutory consultation under sections 42, 47 and 48 of the Planning Act. If applicants decide to take a different approach, they should be clear with consultees about the status of the PEI.

In any event, applicants will need to maintain close dialogue with statutory consultees throughout the pre-application period. The provision of PEI can help statutory consultees to understand the environmental effects of the development and may assist in the identification and addressing of potential issues at an early stage in the pre-application process.

The Planning Inspectorate will not review any of the draft PEI material unless specifically included as part of the agreed pre-application service, but applicants are encouraged to include their approach to preparing PEI in the Programme Document for discussion with the Planning Inspectorate. Further information can be found in the Planning Inspectorate’s Pre-Application Prospectus (to be published Spring 2024).

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What considerations are needed for Habitats Regulations Assessment?

The Habitats Regulations* provide for the designation of sites for the protection of certain species and habitats. When considering whether a proposed NSIP has the potential to significantly affect the integrity of such sites**, the applicant must provide a report as required by Regulation 5(2)(g) of the APFP Regulations 2009. This must include the site(s) that may be affected, together with sufficient information to enable the relevant Secretary of State, as decision maker, to conclude whether an appropriate assessment is required under the Habitats Regulations, and, if so, to undertake such an assessment. Further relevant information can be found in the Planning Inspectorate’s advice and the Department for Environment, Food & Rural Affairs guidance on Habitats Regulations Assessment (HRA). 

*Comprising the Conservation of Habitats and Species Regulations 2017 (as amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019) and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (the ‘Offshore Marine Regulations’) (for plans and projects beyond UK territorial waters (12 nautical miles), also as amended).

**See the Habitats Directive (Council Directive 92/43/EEC), the Conservation of Habitats and Species Regulations 2010, Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 and the Wild Bird Directive (2009/147/EC). These are now the National Network of protected sites such as SPAs and SACs which formerly constituted the Natura 2000 range of sites.

As NPSs reiterate, it is the applicant’s responsibility to provide all the material and evidence as part of the application to enable the Secretary of State to carry out their statutory obligations. Where the applicant is of the view that there are no likely significant effects, this is best presented in the form of a report which contains all the material necessary to justify the conclusions reached, and evidence of the extent of agreement with statutory nature conservation bodies (SNCBs). One way of doing this is for an applicant to agree an evidence plan with the SNCBs to support a HRA where there are extensive or complex issues.

The Planning Inspectorate can also comment on the applicant’s draft HRA report if agreed as part of the pre-application service in advance of formal submission of the application. Applicants must therefore build in sufficient time during the pre-application stage to consult with the SNCBs and, if they consider it appropriate, with any relevant non-statutory nature conservation bodies, in order to gather the necessary evidence and material.

Where any potential for likely significant effects cannot be ruled out and the applicant needs to move to the subsequent stages of the HRA process, it is for the applicant to include as part of the HRA documentation included with the application:

  • a shadow appropriate assessment;
  • where necessary a draft of the applicant’s case for derogations involving imperative reasons of overriding public interest (IROPI) and appropriate compensatory measures, together with evidence of landowner agreements where necessary.

Full HRA material must be provided as part of the application. This guidance requires the Planning Inspectorate not to accept applications for examination which are incomplete or not comprehensive in this regard. It is also expected that additional material should not be submitted by the applicant for validation during the examination stage. If such additional material is needed it will be requested by the Examining Authority or raised by SNCBs in their representations.

By placing the responsibility of compiling all the necessary HRA material on the applicant, coupled with agreed SoCG with SNCBs submitted with the application wherever possible, the expectation is that the range of disputed factual material should be reduced. In turn, the need for the Planning Inspectorate to produce its own document, the Report on the Implications for European Sites (RIES), for the Examining Authority to take into account during the examination and as part of the recommendation should also be decreased. This will contribute to improving the efficiency of the examination and reducing the burden placed on the Secretary of State as competent authority during the decision stage of the NSIP consenting process.

Regulation 26 of the EIA Regulations 2017 requires that where an EIA and HRA are required, the processes should be co-ordinated. The HRA process should form part of, and reference, the work carried out for the broader EIA process, particularly with respect to consideration of alternatives, cumulative effects and mitigation options. However, care should be taken to ensure that the information relevant to the HRA and its conclusions are clearly discernible.

Changes to the HRA requirements for offshore wind will occur through regulations in due course to implement the Energy Act 2023 but the arrangements outlined above continue for the time being.

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What is needed for consideration of good design?

Good design is not simply about the look of a project; it is about the whole process of putting a project together so that it achieves the elements of good design including choice of location, vision, narrative, design principles and consultation programme.

Applicants should involve a diverse range of people including where appropriate, planners, environmental specialists, landscape architects, architects, engineers and community groups in informing the project vision, narrative, design principles, and project design process to support delivery of the outcomes of the project.    

Applicants should explain how the design responds to the National Infrastructure Commission (NIC) design principles for national infrastructure: climate, people, places and value.

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What is needed for consideration of alternatives?

There are particular occasions in the NSIP consenting process where alternatives to the proposed development must be examined as required by legislation. For example, to meet the requirements of the EIA Regulations 2017, and where compulsory acquisition of land is sought by the applicant it should be able to demonstrate that reasonable alternatives to compulsory acquisition of the precise parcels of land have been explored.   

However, this does not extend to the preparation or examination of the application for development consent as a whole. There is no general requirement to consider alternatives for specific applications. The decision to make an Order granting development consent for an application is based on its own merits, not that there may be better or different alternatives either elsewhere or at a later stage. It is often the case that objectors will argue the proposed NSIP should not proceed because there is a superior alternative. Unless such an alternative is worked up in sufficient detail to be compared equally to the application under consideration, it is most unlikely to be capable of being properly considered by the Examining Authority during examination.

That said, applicants do now routinely set out in brief the main alternatives to their preferred scheme which were considered early during the pre-application stage and the consultees’ responses to them. Applicants are encouraged to do so as this can demonstrate how project designs have been refined to take into account environmental, socio-economic and community effects. Any such consideration of alternatives should be submitted as part of the application, perhaps as part of the Planning Statement. All this will help to reinforce the applicant’s case for promoting the NSIP in the particular form of the submitted application.

Very exceptionally, there may be some real alternatives to elements of a proposed NSIP which the applicant chooses to put forward for examination on the basis that the Examining Authority could be able to recommend a preference to the Secretary of State. There may also be circumstances where an element of a proposed NSIP is so exceptional it is in the applicant’s interest to provide a more particular consideration of alternatives to help demonstrate their eventual preference in the light of the policy requirements of the relevant NPS. In such cases, the applicant will need to ensure that sufficient technical material is included as part of the application to enable it to be properly investigated during the examination without leading to substantial delays.

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What is needed for consideration of land matters?

Applicants will often need to compile detailed records of land interests as part of the preparation of an NSIP application. These will be principally for the assembly of the Book of Reference required by Regulations 5 and 7 of the APFP Regulations 2009 where applicable, including where compulsory acquisition of land is proposed, or where applicants require rights to use land (for example, to undertake surveys) or carry out protective works to buildings.

Section 52 of the Planning Act provides detailed provisions which enable applicants to obtain information about interests in land including provisions relating to authority to serve notices, deadlines for compliance and offences for failure to do so.

Section 53 of the Planning Act also provides for applicants to be authorised to enter land they do not own for the purposes of carrying out surveys as part of any work required to inform the environmental assessments (both EIA and HRA).

These provisions under sections 52 and 53 of the Planning Act enable the applicant in turn to meet their consultation obligations under sections 42 or 56 as appropriate of the Planning Act.

The authorisations are operated on the Secretary of State’s behalf by the Planning Inspectorate who have produced detailed advice to cover the procedures involved. This advice includes the information an applicant should provide in order for the authorisation to be considered, what is expected of the recipient of notices and the fees chargeable.

The strong expectation is that applicants of proposed NSIPs will act reasonably in engaging with landowners, and likewise landowners will cooperate with applicants to provide them with the information that they need and facilitate access to their land as required, even if they object to the principle of the development. Such cooperation does not preclude, remove or reduce any of the landowner’s rights to participate in the consultation on an application or make representations about it during the examination.

These Planning Act provisions help to minimise delays resulting from a lack of co-operation from people with interests in land. They are a back stop however, and the procedures involved are detailed and relatively time consuming. If an applicant does find themselves in this position, it is important to recognise this early in the process to lose as little time as possible during the pre-application period.

Equally, there is an expectation that the Planning Inspectorate has procedures in place to handle requests from applicants in as efficient and timely a manner as possible. The Planning Act does not specify statutory timeframes for determining requests from applicants for authorisation. The complexity of circumstances varies of course, but the expectation is that the Planning Inspectorate should be able to process a straightforward request under either section 52 or section 53 of the Planning Act in no more than 3 months.

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How to deal with non-planning consents, permits and licences?

One of the main advantages of the Planning Act is the ability to embrace several non-planning consents within the Development Consent Order (DCO). This enables a decision to be implemented as quickly as possible avoiding the need for a substantial volume of post-DCO consents, permits and licences to be obtained.

However, a consent or authorisation listed under section 150 of the Planning Act can only be included in a DCO if the relevant body responsible for granting it has agreed, and such consent or authorisation is prescribed in the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (as amended) (“the IPMPP Regulations 2015”).

The experience from those DCOs granted to date suggests that rather less use has been made of the provision in section 150 of the Planning Act than had been expected, with several statutory bodies preferring to continue to retain these decisions to themselves subsequent to the making of the DCO. Whilst this can be complex to organise, the example of the Marine Management Organisation in handling deemed marine licences under section 149A of the Planning Act within the body of DCOs shows that this should not be an impediment.

The presumption should be therefore that where an applicant proposes a provision within their DCO to remove a requirement for a prescribed non-planning consent to be granted by the relevant body, the body that would normally be responsible for granting this consent is expected to make every effort to agree to the proposal. Such a body should only object to the inclusion of such provision with good reason, and after careful consideration of reasonable alternatives. It is therefore essential that such bodies are consulted at an early stage, and that applicants give thorough and early consideration to this aspect of pre-application preparation.

Some permits regularly required to implement DCOs lie outside the provisions of section 150 of the Planning Act, for example an environmental permit to operate a particular development issued by the Environment Agency. In this case, an applicant should confirm if an environmental permit is required for the proposed project at an early stage in the preparation of an application. Further guidance is provided by the Environment Agency (Check if you need an environmental permit and guidelines for development requiring planning permission and environmental permits).

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How should applicants obtain a marine licence?  

Section 149A of the Planning Act provides that a DCO may include a marine licence deemed to have been issued under Part 4 of the Marine and Coastal Access Act 2009. Such marine licences are issued by the Marine Management Organisation (MMO), and where an applicant intends to seek such a licence as part of the DCO it is essential that the MMO is consulted at the earliest opportunity to agree the content of the deemed marine licence (DML) and the range of conditions which will be applied. The MMO is responsible for enforcing these conditions, post-consent monitoring, and varying, suspending, or revoking any DML(s) included as part of a made DCO.

In common with other statutory consultees, the MMO has a range of functions under the Planning Act during the pre-application and examination stages. In addition, for NSIP applications that have a marine element the MMO is the body responsible for ensuring that Marine Plans are considered alongside any significant marine issues in the area of the proposed development. 

The MMO has powers under the Infrastructure Planning (Fees) Regulations 2010 (as amended) to charge fees for its services in relation to any advice, information or other assistance (including a response to a consultation) provided in connection with an application or proposed application.

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Pre-application consultation

How can pre-application consultation shape proposals and help prepare applications that are accepted for examination?

Applicants are responsible for consulting on proposed applications for DCOs. Applicants are specifically required to undertake statutory pre-application consultation activities as stipulated in the following legislation:

Effective pre-application consultation is key to developing well-prepared applications that are understood by the public. Consultation on development proposals allows consultees and local communities to influence how infrastructure that meets a national need can be accommodated in their area, and enables applicants to more effectively shape proposals.

From a consultee’s perspective, engaging in pre-application consultation, including for example offering constructive mitigations to reduce a scheme’s impact on the local community and environment, does not undermine any submission on the principle of whether or not development consent should be granted.

Early involvement of local communities, local authorities and statutory consultees during the pre-application stage, both through consultation and other forms of engagement, can bring about significant benefits for all parties, by:

  • helping the applicant identify and resolve issues at the earliest stage, which can reduce the overall risk to the project further down the line as it becomes much more difficult to make changes once an application has been submitted and accepted for examination;

  • enabling interested parties to understand and influence proposed projects, providing feedback on potential options, and encouraging the community to help shape the proposal to maximise local benefits and minimise any disbenefits;

  • enabling applicants to obtain important information about the economic, social, community and environmental effects of a scheme from consultees, which can help rule out unsuitable options; and

  • enabling appropriate mitigation measures to be identified at the outset; considered and, if appropriate, embedded into the proposed NSIP before an application is submitted.

Without adequate pre-application consultation in line with the legislation, the subsequent application when it is submitted to the Planning Inspectorate will not be accepted to proceed to examination. The Planning Inspectorate takes into account the responses received from local authorities during the acceptance period to determine on behalf of the Secretary of State whether the consultation is adequate.

The Planning Inspectorate can either accept or decline to accept the application for examination. Where during the acceptance stage the Planning Inspectorate considers that the application is not satisfactory, it may advise the applicant to withdraw the application, and if appropriate can also recommend that the applicant carries out further consultation activity or engagement before the application is resubmitted.

Paragraph 019   Reference ID 002-019-20240430

Published: 30/04/2024

How can applicants ensure consultation is proportionate?

The pre-application consultation undertaken should be proportionate to the scale and nature of the project and its effects. A ‘one-size-fits-all’ approach is not appropriate. For a straightforward and uncontroversial application, an applicant may choose to discharge the obligations of sections 42, 47 and 48 of the Planning Act concurrently in a single round of consultation, or in separate stages. For more complex proposals, an applicant may choose to conduct a non-statutory round of consultation (for example considering options) before undertaking a statutory round of consultation, or they may choose to run a multi-stage statutory consultation process.

What consultation is planned and when will form a key part of the applicant’s overall programme for completing the pre-application stage. It will need to be included in the Programme Document supplied by the applicant to the Planning Inspectorate for the Inception Meeting. Some applicants may have their own distinct approaches to consultation, perhaps drawing on their own or relevant sector experience, for example if there are industry protocols that can be adapted. Larger, more complex applications are likely to warrant going beyond the statutory 28-day minimum timescales for consultation laid down in the Planning Act to ensure enough time for consultees to understand project proposals and formulate a response.

The timing and duration of consultation will be likely to vary from project to project, depending on size and complexity, and the range and scale of the effects. Applicants should therefore set consultation deadlines that are realistic and proportionate to the proposed project. Equally, it is also important that consultees do not withhold information that might affect a project, and that they respond in good time to applicants. Where responses are not received by the deadline, the applicant is not obliged to take those responses into account.

Once applicants have completed the consultation process set out in their SoCC, where a proposed application is amended in the light of responses to consultation then, unless those amendments materially and substantially change the proposed application or materially changes its effects as a whole, the amendments themselves should not trigger a need for further consultation. The amendments can be reported as part of the consultation report submitted with the application.

Only where the project taken as a whole changes very significantly, and to such a large degree that what is being taken forward is fundamentally different from what was previously consulted on, should re-consultation on the proposed application as a whole be considered.

In understanding whether there has been a material and substantial change, applicants should take into account the following guiding factors:

  • the degree of change as compared to the proposals previously consulted upon as a whole;
  • the number of materially worse environmental effects as compared to what has been the subject of previous consultations; and
  • the level of public interest, and the likelihood that such interest would merit further consideration in the context of that change.

For any material change to a part of the proposed application where the project as a whole is not fundamentally changed, for example in the case of linear aspects where new information leads to a new alignment for a particular section of the proposal, a bespoke and targeted approach to further consultation can be adopted, which can address the specific consultation obligations arising proportionately.

Targeted consultation can be statutory or non-statutory or a combination of the two depending on whether new persons needing to be consulted under section 42 of the Planning Act have been identified, but such targeted consultation will not require the production of PEI provided proportionate and appropriate information on environmental implications of any changes, where necessary, is provided.

Paragraph 020   Reference ID 02-020-20240430

Published: 30/04/2024

Who should be consulted?

Sections 42 to 44 of the Planning Act, Regulation 3 and Schedule 1 to the APFP Regulations 2009 set out details of who must be consulted, including statutory bodies, the Marine Management Organisation where appropriate, local authorities, and persons having an interest in the land to be developed. Section 47 of the Planning Act sets out the applicant’s statutory duty to consult local communities. In addition, applicants will want to consider the issues that may need to be addressed ahead of submission and may also wish to seek the views of other people who are not statutory consultees, but who may be significantly affected by the project.

The Infrastructure Planning (Miscellaneous Provisions) Regulations 2024 amended the APFP Regulations 2009 by substituting a new table of persons prescribed for the purpose of section 42(1)(a) of the Planning Act (duty to consult) and also section 56(2) of the Planning Act (notifying persons of an accepted applications) which is covered in the acceptance guidance. It is the applicant’s responsibility to ensure all relevant prescribed consultees are consulted about a proposed application.

While the list of prescribed bodies who must be consulted was updated in April 2024, from time to time a body may cease to exist but may still be listed as a statutory consultee in the Regulations pending their updating. In such situations applicants should identify any successor body and consult with them in the same manner as they would have with the original body. Where there is no obvious successor, applicants should seek the advice of the Planning Inspectorate, who may be able to identify an appropriate alternative consultee. Whether or not an alternative is identified, the consultation report should briefly note any cases where compliance with statutory requirements was impossible and the reasons why.

Paragraph 021   Reference ID 02-021-20240430

Published: 30/04/2024

How can applicants consult communities effectively?

It is good practice for applicants to work with local stakeholders in the formative stages of the project, through early engagement. This can help inform the Programme Document that they later take to the Inception Meeting with the Planning Inspectorate. Early engagement with local authorities, parish and town councils can help applicants to ensure they find the best approach to engage the relevant communities in the most effective and proportionate way.

Under section 47 of the Planning Act, applicants are required to produce a SoCC, setting out how they intend to consult the local community on the proposed application. Applicants should consider how they can engage communities in a way that supports them to understand the necessary issues at an appropriate stage to support preparation of their application, and how they will show how they have responded to their issues of concern.

Local communities may need support to help them to input to the NSIP consenting process. Independent community liaison chairs or forums can be used to provide support to local communities and non-statutory consultees to enable them to provide an effective input to the pre-application process. Applicants will want to consider whether these should be used, not least to assist an applicant’s own assessment of potential examination issues in preparing their Programme Document and SoCC.

Paragraph 022   Reference ID 02-022-20240430

Published: 30/04/2024

How should applicants engage statutory consultees and other relevant groups?

Applicants must:

Applicants will often need detailed technical input from statutory consultees as expert bodies to assist with identifying and mitigating the impacts of projects, and other important matters. In many cases applicants will need to engage statutory consultees and others before the Inception Meeting with the Planning Inspectorate.

Some statutory consultees have cost recovery arrangements in place for the advice they provide. The ability for statutory consultees to respond effectively to pre-application requests for advice means they have the information they need from applicants to do so. It is essential therefore that applicants arrange early engagement with statutory consultees to avoid unnecessary delays and the costs of having to make changes at later stages of the consenting process.

It is equally important that statutory consultees respond to a request for technical input in a timely manner. This requires statutory consultees to allocate the necessary resource and work with applicants to support them in developing their application, taking account of the issues they raise.

Paragraph 023   Reference ID 02-023-20240430

Published: 30/04/2024

What do applicants have to do to consult people with an interest in land?

Where an applicant proposes to compulsorily acquire an interest or take temporary possession of land it does not own in order to implement a proposed NSIP, under section 42 of the Planning Act they must identify and consult people, including those who own, occupy or have another interest in the land in question.

It is the applicant’s responsibility to demonstrate at submission of the application to the Planning Inspectorate that due diligence has been undertaken in identifying all land interests. Applicants must ensure that the Book of Reference (which records and categorises those land interests) is sufficiently up to date at the time of submission (acknowledging the timescales for preparing and updating it) and fully meets the requirements of Regulations 5 and 7 of the APFP Regulations 2009.

Where appropriate, the Book of Reference should be supplemented by a Land and Rights Negotiation Tracker, submitted by the applicant and updated during the examination, setting out the status of negotiations with landowners, Crown bodies and statutory undertakers affected by proposals for compulsory acquisition of land or rights and temporary possession.

It should be noted that for an accepted application, the situation concerning compilation of land interests can continue to evolve during the examination as new information becomes available, and it is not uncommon for the Book of Reference to be revised and resubmitted more than once. This is usually a substantial undertaking and applicants should dedicate sufficient time and resource, particularly as in many cases there may be parcels of land where there is little information available. With this in mind, applicants are advised to make maximum use of electronic data bases when compiling the Book of Reference to enable such changes to be made easily.

In addition, land interests can change over time and new or additional interests may emerge after an applicant has concluded statutory consultation but just before an application is submitted. In such a situation, the applicant should provide a proportionate opportunity to any new person identified with a land interest to make their views known on the application. Where new interests in land are identified very shortly before the intended submission of an application, despite diligent efforts earlier in the process, it may be difficult at that stage for applicants to consult and take account of any responses from those new interests before submitting their application as intended. If this situation arises applicants should be proactive and helpful in ensuring that the person understands how they can, if they so wish, engage with the process if the application is accepted for examination.

Applicants should explain in the consultation report how they have dealt with any new interests in land emerging after conclusion of their statutory consultation having regard to their duties to consult and take account of any responses.

Paragraph 024   Reference ID 02-024-20240430

Published: 30/04/2024

What is the early adequacy of consultation milestone?

The Programme Document will enable the Planning Inspectorate to determine at the Inception Meeting that the proposed consultation arrangements are adequate for the level of complexity of the proposed project. The Programme Document should also identify an appropriate milestone during the pre-application stage to enable the Planning Inspectorate to test the progress of the consultation.

This adequacy of consultation milestone should be early enough to enable applicants to consider how to undertake any additional engagement that may be needed, but sufficiently towards the end of the pre-application stage to assess the adequacy of the consultation that has been done. It is likely therefore to be no later than around 3 months before the intended date of submission of the application.

The adequacy of consultation milestone should be recorded by the applicant and submitted to the Planning Inspectorate as a short statement of the elements of consultation which have been carried out compared with the components set out in the Programme Document and the SoCC. The statement should include the views and any relevant supporting material from local authorities if available.  

The adequacy of consultation milestone is an informal but nonetheless important opportunity to check that the pre-application programme is on track, and if it is seriously adrift the Planning Inspectorate will advise the applicant about the steps necessary to enable the application to be submitted having fulfilled the statutory requirements. Inevitably this could mean a renegotiation of the expected date of submission, with the objective of avoiding the prospect of an application not being accepted for examination.

Under section 55(4)(b) of the Planning Act, at the acceptance stage the Planning Inspectorate will seek the formal views from local authorities about the adequacy of consultation.

Paragraph 025   Reference ID 02-025-20240430

Published: 30/04/2024

What is the consultation report and how should applicants respond to consultees?

Applicants are required under section 37 of the Planning Act to produce a consultation report alongside their application, which details how they have complied with the consultation requirements set out in the Planning Act and how the proposed application has been shaped as a result. The Planning Inspectorate on behalf of the Secretary of State will consider this report when deciding whether or not the applicant has complied with the pre-application consultation requirements, and ultimately, whether or not an application can be accepted to proceed to examination.

This report should not include an excessively detailed description of every element of the consultation programme. The main objective should be to provide clarity not just on what consultation has been done but, crucially, how the applicant has taken it into account. It should therefore: 

  • provide a general description of the consultation process undertaken including the timeline;

  • set out specifically what the applicant has done to comply with the statutory requirements of the Planning Act, including advice issued under section 51 of the Planning Act, relevant secondary legislation and this guidance;

  • set out how the applicant has complied with the requirements to consult local communities described in the SoCC;

  • set out any relevant responses to consultation (but not a complete list of responses);

  • provide a description of how the proposed application for submission has been informed and influenced by taking account of those responses, showing any significant changes made as a result;

  • provide an explanation as to why any responses advising on changes to a proposed project, including advice from statutory consultees and local authorities on effects, were not followed; and

  • be expressed in terms sufficient to enable the Planning Inspectorate to understand fully how consultation has been undertaken, and how the issues raised through consultation have been addressed or responded to.

It is good practice that those who have contributed to the consultation are informed of the results. The consultation report may not be the most appropriate format in which to respond to the points raised by various consultee groups and bodies. Applicants should therefore consider producing a summary note in plain English for the local community setting out headline findings and how they have been addressed, together with a link to the full consultation report for those interested.

A response to points raised by consultees with technical information is likely to need to focus on the specific impacts for which the body has expertise. The applicant should make a judgement as to whether the consultation report provides sufficient detail on the relevant effects, or whether a targeted response would be more appropriate.

Paragraph 026   Reference ID 02-026-20240430

Published: 30/04/2024

Support from the Planning Inspectorate for pre-application

What are the pre-application services from the Planning Inspectorate?

The Planning Inspectorate provides pre-application services to applicants. These services are explained in its Pre-Application Prospectus (to be published Spring 2024), together with the fees. The levels of service range from basic, focusing on statutory minimum procedural ‘section 51 advice’, to enhanced, supporting applicants of very complex projects in a smoother consenting journey or entry into the fast-track consenting route. The middle level is the standard service which is likely to be provided in the majority of cases. Further information on the fees for their pre-application services are set out in guidance on Cost Recovery by the Planning Inspectorate and Public Bodies.     

Applicants should discuss with the Planning Inspectorate which support package is most suitable for their project, in advance of the Inception Meeting if necessary. The Planning Inspectorate will assess as early as possible what is likely to be expected of them and will offer the applicant the most appropriate level of service, which will be expected to run for a fixed period of time in order to help the applicant and the Planning Inspectorate manage their resources efficiently. Applicants who wish to switch between the levels of service should discuss this with the Planning Inspectorate, which will advise on the consequences of any change.

Paragraph 027   Reference ID 02-027-20240430

Published: 30/04/2024

What is section 51 advice and how can it support the pre-application process?

The Planning Inspectorate can give advice to potential applicants. Section 51 of the Planning Act, and the APFP Regulations 2009, provide for the giving of advice to potential applicants and others about applying for an Order granting development consent and about making representations. The APFP Regulations 2009 set out that a record of this advice must be maintained on an accessible website. The Planning Inspectorate will therefore maintain an Advice Log on the appropriate project pages of the Planning Inspectorate’s National Infrastructure Planning website.

In addition to its long-standing role of providing advice to applicants about procedural matters, as part of its pre-application services the Planning Inspectorate is able to provide an impartial view on questions of a planning nature (‘merits advice’) which relate to potential examination issues, and the readiness of an application to proceed beyond the pre-application stage. This advice will seek to identify any potential examination issues early in the process, to make the most of Inspector and wider Planning Inspectorate expertise in shaping the quality of applications.

Any advice given under section 51 of the Planning Act by the Planning Inspectorate is provided on a ‘without prejudice’ basis. This means that it would be the professional view of the Planning Inspectorate based on the information at the time. The Planning Inspectorate will not be able to give a view on the likelihood of being granted or refused development consent, as this is a matter for the Examining Authority alone to recommend and the relevant Secretary of State to determine.

Paragraph 028   Reference ID 02-028-20240430

Published: 30/04/2024

Can Inspectors provide section 51 advice through the pre-application service?

Whilst an Examining Inspector involved in giving section 51 advice will be in a position to offer an Inspector’s perspective on the significance of issues arising during pre-application for the examination, this does not represent the view of any Examining Authority, which will be informed by considerations through the examination, nor bind the Examining Authority in considering an application. It remains for the Examining Authority when appointed to make any procedural decision or recommendation it considers appropriate.

The Infrastructure Planning (Miscellaneous Provisions) Regulations 2024 amend the APFP Regulations 2009 by removing Regulation 11(3) which means that an Examining Inspector involved in giving pre-application advice under section 51 of the Planning Act to the applicant during the preparation of an application can be appointed to the Examining Authority. In all circumstances deciding which Examining Inspectors are appointed to an Examining Authority requires the Planning Inspectorate to consider propriety issues and avoid any conflicts of interest.

Paragraph 029  Reference ID 02-029-20240430

Published: 30/04/2024

What should applicants and others involved in the pre-application process do where issues remain unresolved?

The programme-led approach, driven by the applicant through their Programme Document, is intended to support preparation of the application and address the issues it gives rise to in such a way as those which remain outstanding at examination are minimised. Applicants, working with those engaged in the pre-application process, have an important role to play to ensure that an examination focuses on the main differences between the parties.

Statements of Common Ground (SoCG) can support this by providing a written statement (prepared by the applicant and another party or parties), setting out matters on which they agree or disagree. Applicants are encouraged to submit SoCGs as part of the application documents, even if they are of a provisional or draft nature to be developed during the examination. It is therefore important that these are prepared during the pre-application period wherever possible, particularly with statutory consultees and affected local authorities.

Principal Areas of Disagreement Summary Statements (PADSS) record the key areas of disagreement together with a statement as to what precise change to the draft DCO is sought by the relevant interested party to resolve the issues. Submission of PADSS are suitable for all types of application but are an essential element of a potential fast-track application.

Paragraph 030   Reference ID 02-030-20240430

Published: 30/04/2024

What should be included in applications?

An application for an Order granting development consent must be made in the form and include such matters prescribed by section 37 of the Planning Act and Regulations 5, 6 and 7 of the APFP Regulations 2009. These cover a wide range of plans and documents which must be submitted and compliance with the requirements of these regulations is one of the main tests the Planning Inspectorate applies in reaching a decision about whether or not to accept the application for examination.

The content of a proposed application set out in the regulations consists of 3 types of matters:

  • those elements which must be included in any application such as the draft DCO, Explanatory Memorandum and works plans;

  • those elements which must be included but only where applicable, such as an Environmental Statement, Book of Reference and certain land plans (where altered means of access, and particular documents required by specific types of projects; and

  • any other documents or plans considered necessary to support the application.

In practice therefore, each application will differ in content contingent on the nature of the proposed NSIP and the impact on local features such as heritage assets and important habitats. There is flexibility offered by Regulation 5(2)(q) of the APFP Regulations 2009, and in the light of experience of many proposals there are documents which most applicants now routinely submit such as a Design and Access Statement and a Code of Construction Practice, sometimes as part of the Environmental Statement.

The expectation now in this guidance is that there are standard documents which the Examining Authority will normally require as part of an application to support an informed decision:

  • a Planning Statement which provides a description of the proposed development and a summary of the main impacts, the policy context for the proposed development and how the project relates to the requirements of a designated NPS;

  • where the application involves a request for compulsory acquisition powers a Land and Rights Negotiation Tracker which identifies each plot of land and enables the progress of negotiations relating to each one during the examination to be easily monitored; and

  • for proposed fast-track applications (and good practice for all applications) a document which sets out the applicant’s view of the principal issues identified through pre-application process and the applicant’s view on the extent to which they can be settled during the examination (this is explained more fully in guidance covering fast-track).

A further consideration is the desire for flexibility sought by many applicants particularly in the draft DCO, so that refinements to the approved development can be accommodated as detailed design and implementation takes place. This is supported by specific references in some NPSs, but at the same time the DCO as a statutory instrument needs to be legally certain.

A common way of balancing these requirements is to express the approved development by way of maximum parameters such as dimensions of buildings, reflecting the cautious worst-case approach also for the purposes of environmental assessment. This ‘Rochdale Envelope’ approach can be acceptable in formulating an NSIP application, but subject to the following considerations:

  • the application documents such as the Planning Statement should explain and justify the need for, and the timescales associated with, the flexibility sought and this should be established within clearly defined parameters;

  • the parameters established for the proposed development must be sufficiently detailed to enable a proper assessment of the likely significant environmental effects and to allow for the identification of necessary mitigation;

  • the assessments in the Environmental Statement must be consistent with the parameters to ensure a robust worst-case assessment of the likely significant effects has been undertaken; and

  • there must be sufficient information to enable all consultees to appreciate the impacts and effects of the proposed development and to meet the statutory consultation requirements; flexibility is not a reason for falling short in this regard.

Unless specifically requested by the Planning Inspectorate, there is no requirement to submit the application documents in hard copy form, and the expectation is that all material will be submitted electronically and published in due course on the Planning Inspectorate’s National Infrastructure Planning website. Documents should also be made available on the applicant’s website. In due course the provisions of sections 84 and 85 of the Levelling Up and Regeneration Act 2023 will be implemented to apply to the NSIP consenting process by requiring the submission of planning data as will be specified in regulations. This will further enhance the ability of applicants to submit applications in up-to-date digital formats.

Paragraph 031   Reference ID 02-031-20240430

Published: 30/04/2024

Working with local authorities

How should applicants engage with local authorities?

The Planning Act recognises the role that local authorities play as bodies with expert knowledge of the local community, business and other interests as well as their responsibility for development of the local area. They can support applicants in developing proposals, ensuring local issues are understood and taken into account.

The particular functions that local authorities have in the pre-application process include:

  • consultation about the SoCC under section 47 of the Planning Act which sets out how an applicant will consult with the people living in the vicinity of the land for their proposed development;

  • their role as a statutory consultee under section 42 of the Planning Act for any proposed application in or adjacent to their area (as defined by section 43 of the Planning Act) which they must be consulted on by the applicant;

  • their role as a relevant consultation body in relation to EIA scoping opinions;

  • although not a statutory requirement, a SoCG between the applicant and local authorities is now a well-established practical part of the process;

  • initial preparation stages of the Local Impact Report (LIR) setting out the local authority’s views on the likely impact of the proposed development on their local area and communities; and

  • responses and engagement in relation to the adequacy of consultation milestone.

Applicants are required to consult the local authority in whose area a proposed NSIP project lies (the ‘host’ local authority). They are also required to identify and consult the neighbouring local authorities under the requirements of section 43(2) and (2A) of the Planning Act. This explains how lower tier or unitary authorities adjacent to the host authority, and upper tier authorities adjacent to the upper tier authority within which the proposal is located, should be consulted. Determining which neighbouring authorities should be involved can only be done on a case-by-case basis. If the boundaries of the proposed applications change, applicants will need to consider whether there are any changes to the local authorities they need to consult.

Applicants need to appreciate the range of local government structures in England particularly, and the meaning of ‘local authority’ in section 43(3) of the Planning Act for the purposes of consultation under the section 42 of the Planning Act. Where a combined authority or combined county authority is in place, applicants are recommended to review whether the relevant legislation which established those authorities brings them within scope of the consultation requirements under the Planning Act. Unless functions of county, district or unitary authorities have been specifically transferred by legislation, then these type of government bodies would not be a ‘local authority’ under these sections of the Planning Act. However, it is good practice for applicants to work with the constituent local authorities to consider how a combined authority could best support development of the application.

Depending on the nature and scale of the NSIP, and the extent to which a particular authority is affected, Planning Performance Agreements or mechanisms that provide cost recovery may be appropriate. This should be set out in the applicant’s Programme Document for discussion and agreement with the Planning Inspectorate at the Inception Meeting.

Paragraph 032   Reference ID 02-032-20240430

Published: 30/04/2024

What support is available for local authorities to engage in the pre-application process?

While some local authorities have experience of participating in the NSIP consenting process, many will not, and for this reason the Planning Advisory Service facilitates a local authority support network. Local authorities can thereby learn from others how they went about planning, resourcing, and engaging with the process and provide practical advice. In addition, the Planning Advisory Service has developed examples of good practice, and the Planning Inspectorate can put local authorities in touch with others who have experience of particular aspects of the NSIP consenting process.

Paragraph 033   Reference ID 02-033-20240430

Published: 30/04/2024

Where projects affect multiple local authority areas what considerations arise? 

In preparing a SoCC under section 47 of the Planning Act, applicants may need to consult with a number of different local authorities. This may particularly be the case for long, linear projects. In this situation, the local authorities in question should, as far as practicable, co-ordinate their responses to the applicant. This will ensure that the consultation proposals set out in the SoCC are coherent, effective, and work across local authority boundaries.

Paragraph 034   Reference ID 02-034-20240430

Published: 30/04/2024

What is the role of local authorities in adequacy of consultation?

When an application is submitted to the Planning Inspectorate, local authorities affected by a proposed NSIP are invited by the Planning Inspectorate under section 55(4)(b) of the Planning Act to confirm whether the consultation has been adequate in meeting the expectations set out in the SoCC.

It is therefore vital that local authorities have been fully engaged during the consultation process undertaken by the applicant during the pre-application stage so that they are fully informed and able to respond authoritatively within tight deadlines in order that a decision on whether the application to proceed to examination can be made within 28 days. Accordingly, local authorities are advised to prepare their adequacy of consultation responses in advance of the acceptance stage, and to raise any concerns with applicants ahead of submission, and as part of the early adequacy of consultation milestone.

Paragraph 035   Reference ID 02-035-20240430

Published: 30/04/2024

What should local authorities take into account in working with applicants to help prepare their Statement of Community Consultation (SoCC)?

Host local authorities are required to respond to the applicant’s consultation on their proposed SoCC within 28 days of receipt of the request. Their extensive knowledge and experience of their local communities can help applicants to understand and most effectively engage with communities. In this engagement local authorities should focus their efforts on the quality (more than the quantity) of consultation, and how to build consultation that is effective. This can take particular account of:

  • the size and coverage of the proposed consultation exercise (including, where appropriate, consultation which goes wider than one local authority area);

  • the way in which applicants consult, considering the appropriateness of various consultation techniques, including digital and electronic-based ones (which are particularly encouraged);

  • the design and format of consultation materials;

  • issues which could be covered in consultation materials;

  • suggestions for places/timings of public events as part of the consultation;

  • local bodies and representative groups who should be consulted;

  • timescales for consultation; and

  • the way in which applicant can support communities to engage in the application process, and how they have responded to issues raised in preparing their application.

Where a local authority raises an issue or concern about the draft SoCC which the applicant feels unable to address, the applicant is advised to work with the authority to find an appropriate way forward. Where this is not possible, they should explain the reasons for this and rationale for their course of action in the consultation report submitted as part of their application.

Applicants have a statutory duty to consult any local authority in whose land a project is sited. So, where an offshore project also features land-based development such as an onshore cable route and substation, the applicant should treat the local authority where the land-based development is located as the main consultee for the SoCC. The applicant is also advised to consider seeking views on the SoCC from local authorities whose communities may be affected by the project, for example visually or through construction traffic, even if the project is in fact some distance from the area in question. In addition, applicants may find it beneficial to discuss their SoCC with any local authorities in the vicinity where there could be an effect on harbour facilities.

Paragraph 036   Reference ID 02-036-20240430

Published: 30/04/2024

How should local authorities engage with proposals as statutory consultees and prepare local impact reports (LIR)?

Local authorities are well placed to help applicants understand a wide number of matters and potential local impacts, including how the project relates to the development plan, and provide suggestions for requirements to be included in the draft DCO. These may include the later approval by the local authority (after the granting of a DCO) of detailed project designs or schemes to mitigate adverse impacts, and subsequent enforcement responsibilities. Further information is set out in guidance on the content of a DCO.

The comments that a local authority provides about a proposed application in response to consultation under section 42 of the Planning Act, and subsequently about the merits of the proposals, will inform its relevant representations once the application has been accepted for examination. These comments are quite separate from views the local planning authority will provide on the SoCC under section 47 of the Planning Act.

Once an application has been accepted for examination, under section 60 of the Planning Act, the local authority in whose area a proposed project is located (and relevant neighbouring authorities) will be invited by the Examining Authority at a very early stage in the examination to submit a Local Impact Report (LIR). The LIR should give details of the likely impact of the proposed development on the authority’s area (or any part of that area). Local authorities should use the pre-application stage to understand and assess these issues and begin their preparation of the LIR.

From the applicant’s perspective, it is important that local authorities respond to a request for technical input in a timely manner. Applicants are expected to work with local authorities in preparing their Programme Document, including about how they support authorities to be effectively resourced to engage in a way that supports this Programme Document. Further consideration to these matters is provided in guidance dealing with fees, cost recovery and Planning Performance Agreements.

Paragraph 037   Reference ID 02-037-20240430

Published: 30/04/2024

How should applicants work with local authorities on offshore projects?

Different impacts and issues will need to be considered by applicants for offshore projects in comparison to those which are land-based. In the context of this guidance, “offshore” refers to an area that is outside the seaward boundary of a local authority’s area.

There may be proposed NSIPs which do not feature any terrestrial development, though experience suggests these are very uncommon. In such cases, there are no statutory requirements upon applicants to consult specific local authorities. Local authorities are therefore not required to respond to any consultation requests, regardless of whether they relate to the proposed SoCC or to the project itself. Nonetheless, if they are consulted, local authorities are expected to respond where they consider offshore projects may impact on their communities.

Where the location of a proposed offshore project is such that the potential impacts on communities are likely to be very small or negligible, applicants are still expected to inform relevant coastal authorities and communities of the proposed project, and give them a chance to take part in any consultation.  

Ultimately, applicants for offshore projects should take a pragmatic approach, consulting in proportion to the impacts on communities and the size of the project, whilst ensuring that relevant local communities are kept informed about the proposals and offered the chance to participate in shaping them. Applicants should use this as a guiding principle for consultation together with the statutory requirements as set out in the Planning Act. Provided they do this, and fully explain their approach in the consultation report which accompanies their application, the expectation is that their application will not be rejected at the acceptance stage on the grounds of insufficient public consultation.

In addition to relevant local authorities and their communities, prospective applicants for development consent for certain types of projects are required to consult and engage with the Marine Management Organisation. They will also be able to advise on what, and with whom, additional consultation might be appropriate.

Additional advice is available from the Planning Inspectorate on required transboundary consultations.

Paragraph 038   Reference ID 02-038-20240430

Published: 30/04/2024

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Published 30 April 2024

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