Planning Act 2008: Pre-examination stage for Nationally Significant Infrastructure Projects
Guidance on the pre-examination stage for Nationally Significant Infrastructure Projects.
Applies to England
Pre-examination
The Purpose of this guidance
This National Infrastructure Planning Guidance (“guidance”) sets out the requirements and expectations during the pre-examination stage for a Nationally Significant Infrastructure Project (NSIP).
Paragraph 001 Reference ID 06-001-20240430
Published: 30/04/2024
What is the pre-examination stage?
The pre-examination stage of the National Infrastructure consenting process commences following the acceptance of a DCO application by the Planning Inspectorate, and includes the following activities:
- receipt of relevant representations by the Planning Inspectorate;
- identification of interested parties and affected persons;
- appointment of the Examining Authority;
- initial assessment of principal issues by the Examining Authority; and
- the holding of a preliminary meeting.
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Published: 30/04/2024
What are relevant representations?
A “relevant representation” is defined in section 102(4) of the Planning Act. A representation will only be “relevant” if it is in accordance with the substantive and procedural requirements set out in section 102(4) of the Planning Act and Regulation 4 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (as amended) (the “IPMPP Regulations 2015”).
It must also be received by the Planning Inspectorate during the pre-examination stage by the deadline specified in the application acceptance notice issued by the applicant pursuant to section 56 of the Planning Act.
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Published: 30/04/2024
Why are relevant representations important?
A relevant representation is a crucial element of the NSIP consenting process for two reasons.
Firstly, this is the means by which anyone who has an interest in the application, in addition to applicants, statutory parties, and relevant local authorities, can become an interested party for the purposes of the examination of an accepted DCO application.
Secondly, it is the means by which all interested parties set out their principal submissions, and where practicable, the full particulars about the DCO application. The Examining Authority must consider the matters raised in relevant representations when preparing the initial assessment of principal issues.
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Published: 30/04/2024
When and how are relevant representations made during the pre-examination stage?
The period for the receipt of relevant representations is determined by the applicant, in agreement with the Planning Inspectorate during pre-examination. There is no fixed statutory period for the pre-examination stage specified in the Planning Act, which allows for some flexibility in approach in response to the scale and nature of a specific project. However, the expectation in this guidance is that the relevant representations period should be a maximum of 8 weeks, within an overall maximum period for pre-examination of 5 months (3 months in the case of fast-track applications).
A relevant representation must be made on the correct form as required by the Planning Inspectorate and all the mandatory fields on the form must be answered. The form is made available on the relevant project page on the Planning Inspectorate’s National Infrastructure Planning website at the start of the relevant representation registration period.
Changes have been made to the definition of a relevant representation in Regulation 4(2)(b) of the IPMPP Regulations 2015 which applies to all applications for a DCO made after 30 April 2024. The purpose of this amendment is to encourage more detailed submissions at an earlier stage in the NSIP consenting process. Accordingly, the registration form for relevant representations must include the principal submissions, and where practicable, the full particulars of the points raised.
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Published: 30/04/2024
Content of relevant representations
The number of relevant representations received varies enormously between DCO applications from less than 10 at one extreme to several thousand at the other. But in all circumstances, this is the first indication to the Examining Authority about the range and nature of matters which concern interested parties, and therefore warrant consideration during the examination.
The experience from DCO applications to date is that many relevant representations have been extremely brief, sometimes little more than a statement of opposition or concern with an indication that the matters will be developed in greater detail in subsequent written representations. It is helpful to the Examining Authority if interested parties (including statutory bodies) submit as much material as early as possible as part of their relevant representations. The more comprehensive and detailed relevant representations are upon their submission to the Planning Inspectorate, the more information the Examining Authority has to make informed judgments about the initial assessment of principal issues for consideration during the examination stage of the NSIP consenting process.
As the fast-track guidance explains, the relevant representations stage is also particularly important in relation to applications being proposed for a fast-track examination as this is the only opportunity interested parties will have to comment if they wish on the fast-track timetable.
For these reasons, a relevant representation is defined as the principal submissions and, where practicable, the full particulars of the case which the person proposes to make in respect of the application (Regulation 4(2)(b) of the IPMPP Regulations 2015). A relevant representation should relate to the application and contain sufficient information to enable the Examining Authority to understand which aspects of the application the person making the representation agrees or disagrees with and the reasons why, highlighting what are considered to be the main points. Relevant representations should contain supporting evidence and documentation, such as any data, methodology and assumptions used to support the submission.
In circumstances where interested parties are not able to submit the full particulars of their case, for example if further information is required from the applicant or other parties, it is expected that the relevant representation provides as much detail as is practicable at the time and identifies the matters where the interested party may seek to submit further detail as part of a subsequent written representation.
This approach to front loading the content of relevant representations is supported by the encouragement to applicants to publish application documents on their own website, and similarly enable the Planning Inspectorate to do so on the National Infrastructure Planning website at the time of submission of the application. This enables all prospective participants in the process to have the earliest opportunity to view the content of the application.
However, in preparing relevant representations, interested parties should base their submissions firmly on the latest set of documents accepted for examination as listed in the examination library for each application on the Planning Inspectorate’s National Infrastructure Planning website.
In no way does this encouragement to submit as detailed relevant representations as possible preclude any interested party, whether an individual or a statutory body, from continuing to make written submissions to the Examining Authority as the examination unfolds in line with section 90 of the Planning Act.
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Published: 30/04/2024
Relevant representations from public authorities
Secondary legislation and this guidance requesting participants to submit as full a relevant representation as practicable is applicable to all interested parties, but is particularly relevant for local authorities and statutory bodies who are regular participants in the NSIP consenting process.
The statutory bodies expected to comply with this guidance are the 8 public authorities listed in Schedule 2 of the Infrastructure Planning (Fees) Regulations 2010 (as amended):
- The Environment Agency
- Natural England
- Historic Buildings and Monuments Commission for England
- National Highways
- The Coal Authority
- The Health and Safety Executive
- Marine Management Organisation
- Natural Resources Wales
They will normally be involved in the preparation of an application during the pre-application stages and therefore in a position to be able to formulate their views about the application at this early stage in the process.
Moreover, because they are enabled to charge applicants for their pre application advice, it is expected that they will be in as well prepared a position to do so as possible. The ability for statutory parties to respond effectively at the relevant representations stage requires applicants to ensure statutory parties have the information they need in an effective and timely way.
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Published: 30/04/2024
What if the deadline for submitting a relevant representation is missed?
Where a person has not submitted a relevant representation within the specified time period for relevant representations and wishes to participate in the examination, the Examining Authority may consider whether to exercise its discretion to allow the person to do so. Any submission received after the deadline for relevant representations should be accompanied by an explanation for the late submission.
Dependent on the stage in the process, it is also at the discretion of the Planning Inspectorate or the Examining Authority whether or not anyone who provided their submission late, incomplete or on the wrong form can participate in the examination.
An Examining Authority is entitled to disregard a representation that contains material about compensation for compulsory acquisition of land or an interest in or right over land, the merits of policy set out in a National Policy Statement, or is vexatious or frivolous (further detail on these matters is provided in the examination guidance).
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Published: 30/04/2024
What and who are interested parties?
The definition of an “interested party” is a significant one, because interested parties are given important entitlements before, during and after the examination process. These include the right:
- to be invited to a preliminary meeting;
- to require, and be heard at an open-floor hearing;
- to be heard at an issue-specific hearing if one is held;
- to be notified when the Examining Authority has completed its examination; and
- to be notified of the reasons for the decision by the Secretary of State.
A full definition of interested parties and the key bodies and individuals who have important roles in the examination of applications is set out in section 102 of the Planning Act, and they include the following persons and bodies:
- the applicant;
- certain persons with an interest in relevant land who have been notified of the acceptance of the application under section 56(2)(d) of the Planning Act;
- the Marine Management Organisation for relevant applications;
- the local authority or authorities where the land for development is located (host local authorities);
- the Greater London Authority where the land is in Greater London;
- persons who have made relevant representations about the application to the Examining Authority; and
- (if they notify the Examining Authority) neighbouring local authorities adjacent to the authority in which the development is located, and other statutory parties as defined in the IPMPP Regulations 2015.
In addition, there are provisions within section 102A of the Planning Act enabling people to make a request to the Examining Authority to become an interested party after the examination of the application has begun, if they can demonstrate they meet the requirements in section 102A of the Planning Act, including that they fall within one of the categories set out in section 102B of the Planning Act (persons with interests in certain relevant land). Conversely, interested parties may deregister as an interested party by writing to the Examining Authority to withdraw from the process.
It is important to note that statutory parties and local authorities adjacent to the authority in which the development is located are not automatically interested parties. Statutory parties are defined by section 88(3) of the Planning Act, Regulation 3 and schedule 1 of the IPMPP Regulations 2015. They will be involved in the process as a matter of course up to, and including, the preliminary meeting, but must notify the Examining Authority or make a relevant representation if they wish to become interested parties and participate in the examination.
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Published: 30/04/2024
Who are “affected persons” and are they also interested parties?
One of the most significant elements of an application for a development consent is that it enables an applicant to seek powers for the compulsory acquisition of land and rights needed to carry out the proposed development, and most applications request these powers. “Affected persons” (as defined by sections 59(4) and 92(5) of the Planning Act) are the bodies or individuals identified by the applicant, after making diligent inquiry, as having an interest in the land or any part of the land to which such a compulsory acquisition request relates.
Where applications include the proposed compulsory acquisition of land, the applicant is under a duty under section 59 of the Planning Act to notify the Planning Inspectorate of the names, and such other details as may be prescribed, of each affected person in relation to the application. Essentially this is satisfied by the submission as part of the application of the Book of Reference as defined in Regulation 7 of the APFP Regulations 2009 and the land plans showing each plot required or affected by the proposed development as defined in Regulation 5(2)(i) of the APFP Regulations 2009.
A person or organisation can be an affected person as well as an interested party, but there are clearly separate rights relating to both categories. For example, affected persons are able to request that a compulsory acquisition hearing is held to consider the issues arising in connection with the authorisation of the compulsory acquisition of the land and to make oral representations at that hearing. The detailed handling of compulsory acquisition matters is covered in the guidance on procedures for the compulsory acquisition of land.
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Published: 30/04/2024
Appointment of the Examining Authority
During the pre-examination stage the Planning Inspectorate on behalf of the Secretary of State appoints Examining Inspector(s) to comprise the Examining Authority. Whether the Examining Authority is a single Examining Inspector or a panel of up to 5, depends on the nature, scale and complexity of the proposed development. Under section 62 of the Planning Act, where the Planning Inspectorate has appointed a single appointed person to examine an application, the size and composition of the Examining Authority can be changed to be handled by a panel at any time.
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.
Wherever possible, it is desirable that an Examining Inspector assigned to contribute to the assessment process of an application submitted for acceptance should form part of the Examining Authority for that DCO examination, whether as a single person or as a member of a panel. That way the continuity between matters identified at the acceptance stage and the framing of issues for consideration during the examination can be best enabled.
However, 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.
Rule 4 of the Infrastructure Planning (Examination Procedure) Rules 2010 (as amended (the “EPR 2010”) requires the Planning Inspectorate, before the preliminary meeting, to notify the composition of the Examining Authority to all those who have been informed of the acceptance of the application for examination under section 56 of the Planning Act.
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Published: 30/04/2024
What are the criteria for appointing the Examining Authority?
Section 61 of the Planning Act requires the Planning Inspectorate on behalf of the Secretary of State to publish the criteria to be applied in appointing the Examining Authority. Specifically, in making this decision the Planning Inspectorate will apply the following criteria:
a) The complexity of the case
The number, complexity and the type of issues raised by individual applications will vary greatly depending, amongst other things, on the nature and location of the proposed development. An initial assessment of the application documents, including the consultation report, will enable the Planning Inspectorate to indicate whether the proposal:
- raises novel issues for consideration during the examination;
- raises complex legal or technical considerations;
- contains proposed associated development which would require consideration of policy contained in more than a single National Policy Statement; or
- involves analysis of policy issues because, for example, there is no relevant designated National Policy Statement.
b) The level of public interest in the case
Anyone is entitled to support or object to any application for development consent or any particular elements of it. Individuals may have social, environmental, political or purely personal concerns about a particular development proposal or any aspects of it. Each NSIP application is unique, and the level of public interest generated will vary greatly depending on the size, scale, location and nature of the proposed development.
The initial assessment of the application documents, in particular the consultation report, will provide the Planning Inspectorate with an indication of the level of public interest in the proposed NSIP, and the likely level of public participation in the examination of the application. In particular, the Planning Inspectorate will consider the likelihood of the examination requiring hearings so that interested parties can make oral representations about the application to the Examining Authority.
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Published: 30/04/2024
Initial assessment of principal issues
The first specified task of the Examining Authority is to prepare an initial assessment of the principal issues which it considers the application raises. It does this on the basis of reading the application documents and scrutinising the range of relevant representations received and published on the project pages of the National Infrastructure Planning website. Rule 5 of the EPR 2010 requires that this is completed within the 21-day period that begins with the day after the day notified in accordance with section 56 of the Planning Act, and satisfies the requirements of the APFP Regulations 2009 as the deadline for the receipt of representations.
This initial assessment of principal issues is intended to enable the Examining Authority to frame the examination so that the main matters are clearly identified and given proper time for analysis. This is the reason why relevant representations should be as comprehensive as possible, as set out above.
It is important the initial assessment of principal issues does not become a long list of every matter which the examination may cover. Constructing an initial assessment of principal issues at this early stage of the pre-examination process in no way prevents the subsequent consideration of topics or matters not mentioned, or for principal issues to fall away during the course of an examination. It does however require the Examining Authority to highlight those crucial matters upon which it considers the examination will turn.
Interested parties have the opportunity to express views about whether the principal issues identified are the ones they would agree with or that others should be included. They can do this at the preliminary meeting, covered in the guidance dealing with the examination stage.
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Published: 30/04/2024
Procedural decisions by the Examining Authority during the pre-examination stage
The Examining Authority once appointed, may choose to issue procedural decisions which are not about the merits of the proposed DCO application, but do assist with its preparation for examination. Procedural decisions by the Examining Authority during pre-examination are encouraged as an important way to facilitate the front loading of handling DCO applications and facilitate an efficient examination.
A procedural decision is defined in section 89 of the Planning Act, which also requires the Examining Authority to inform each interested party, statutory party and local authorities adjacent to the authority in which the development is located of such decisions it makes.
Procedural decisions will vary depending on the specific detail of the DCO application, but could include:
- providing all interested parties with advance notice of its intended list of First Written Questions;
- requests for information from the applicant, for example in relation to document updates to correct minor errors and omissions;
- requests for specific interested parties to participate in the preparation of Statements of Common Ground; and
- requests for the applicant to issue a list of Principal Areas of Disagreement Summary Statements, if appropriate.
Section 88(5) of the Planning Act and Rule 6(3) of the EPR 2010 enables an Examining Authority to hold a meeting(s) with some or all of the interested parties during the period between the establishment of the initial assessment of principal issues and the preliminary meeting. This, coupled with the procedural decisions powers of section 89(3) of the Planning Act, enables an early start in the Examining Authority’s understanding and the investigation of contentious matters. Whilst it is entirely for the Examining Authority’s discretion, the use of such meetings is encouraged where likely to be purposeful in moving the examination forward as swiftly as possible.
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Published: 30/04/2024
What is a preliminary meeting?
The pre-examination stage concludes with the preliminary meeting, with the examination stage commencing immediately following the close of the preliminary meeting. Detailed matters concerning the preliminary meeting are covered in guidance dealing with the examination.
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Published: 30/04/2024