A sudden Government announcement sprung on Tuesday, comprising amendments to the Planning and Infrastructure Bill to remove the statutory consultation requirement from the NSIP pre-application process. No more PEIR. No more SoCC. No more section 47 notices.
This is a brave move from Government to speed up the planning process for these significant projects, especially with a backdrop of community concern (particularly around cumulative impacts of these projects) in some areas.
What could the removal of the statutory straitjacket really mean for projects, communities and NSIP promoters?
1. We still need pre-application consultation
The Government has emphasised that pre-application consultation will still be the recommended approach for NSIPs, and we can expect guidance on this to be consulted on in summer. Pre-application consultation will remain essential in dealing with issues early and making changes before the pressured timelines of examination.
Removing a lot of the tick box requirements of a statutory consultation opens up an opportunity to be a lot more strategic and insight led in the pre-application communications, moving away from the security of “this is how we’ve done it before to get accepted” to “what does this project and this community need”. That may mean a series of targeted consultations, online platforms, workshops or focus groups, as well as a more traditional consultation.
The key challenge for developers will be building trust with communities in the pre-application engagement, when the legal requirements have been removed.
2. What will local authorities do?
The Statement of Community Consultation and Adequacy of Consultation are unique to the DCO regime, putting onus on local authorities to help the developer deliver the best pre-application consultation for the local community.
With local authorities under ever-increasing financial and time pressures (and with Local Government Reorganisation taking focus), host authorities could reduce their engagement with developers about how best to engage with their communities.
In addition, the current clear framework for local authorities to judge consultations against can make it difficult for councillors to challenge it. By removing the framework, there may be more room for such challenge, bringing more politics into the process.
3. Legal challenge remains
Whilst the Government is looking to remove the Planning Act’s pre-application requirements, the law of consultation remains. Any consultation will still need to follow the Gunning Principles, fundamentally ensuring transparency, accessibility, ability to respond and fairness are key parts of any public consultation.
The Equalities Act requires public bodies to ensure their consultation processes are accessible and inclusive, prohibiting discrimination against protected characteristics. This means ensuring that engagement is inclusive. Projects will need to continue to deliver on seldom heard strategies to meet these requirements.
There is a risk that without the statutory consultation playbook, legal challenges over adequate consultation could be more frequent.
4. Understanding technical details
One of the concerns cited by Government about the current situation is the tendency for “longer, more technical and less accessible documentation” in the consultation process. Anyone who has proudly displayed a printed PEIR at deposit points or events will know these documents are often still in pristine condition at the end of consultation. Hundreds of hours of work barely looked at.
That said, when talking to people at events, they want to know the detail, see the visualisations and work out the impact on them. So, ditching the documents, yet communicating the content is key.
Interactive plans showing impacts during construction and operation are being increasingly used by developers, helping people visualise and understand the complex. Removing the need for the PEIR will provide more resource to invest in these worthy and more effective tools.
5. Examination
For communities, NSIPs are an endurance process. After years of the pre-application process, with often multiple rounds of consultation, they then have the examination with deadlines and documents galore.
Streamlining may be welcomed by some, but there is a risk that issues currently addressed in the pre-application process come to the fore during examination. Whilst changes are possible in examination, they are not as easy as they are earlier in the process and are subject to the pressure of the examination timetable.
This leads back to my first point: thorough pre-application consultation and engagement must remain. Developers should be confident that at submission they have a design which stakeholders and the local communities have had an opportunity to influence. DCOs are ultimately a political decision, and promoters should not risk creating ill will through pre-application that festers through examination and construction. Creating the best possible relationship with your communities and their political representatives still leads to the best, smoothest and most successful projects.
And finally, it’s worth reminding ourselves that the Planning and Infrastructure Bill still has a way to go through the legislative process, so let’s hold tight before burning our section 42 lists.
