As the planning industry grapples with the implications of the new Pre-application Prospectus for the delivery of future and ongoing major projects, Charlotte Dyer and Ruth Taylor, of Herbert Smith Freehills LLP, provide a brief summary of the key aspects of the Prospectus.
These are our initial observations on whether it will help to make the consenting process easier for applicants or just add to their already large burden, based on our experience of helping our clients navigate the new process at this early stage.
What is the Prospectus?
As part of the government’s initiative to accelerate and improve the decision-making process for major infrastructure projects, on 16 May 2024 the Planning Inspectorate (PINS) published a Pre-application Prospectus setting out the details of a new pre-application service for nationally significant infrastructure projects (NSIPs) consented under the Planning Act 2008. The Prospectus will be relevant for any developers at the early stages of progressing applications for development consent orders (DCOs), including for solar and battery storage (BESS), in England and Wales.
The key aspects of the new prospectus
The Prospectus sets out new “tiers” of pre-application service that will be provided by PINS, and introduces the requirement for new documents in the pre-application stage.
These 3 tiers of service are:
Basic: PINS will comply with its statutory duties (such as issuing scoping opinions on behalf of the Secretary of State) but will provide limited assistance beyond this. The Prospectus states that: “the basic tier could represent an appropriate service for very experienced applicants and low-complexity projects, for which an up-to-date relevant National Policy Statement(s) is in place, seeking no or limited compulsory acquisition powers, and/ or which are likely to give rise to examination issues that are few and commonly considered by Examining Authorities.”
Although solar/BESS projects can have elements of complexity, especially if sited near particularly sensitive receptors or multiple other major schemes, most solar/BESS projects fall into the category that we suspect PINS is targeting with this service level. Solar and BESS benefit from having an up-to-date National Policy Statement in place; they are relatively straightforward when compared with other NSIPs; and similar (and thus predicable) issues are often raised during the examination of solar/BESS DCO applications (e.g. use of agricultural land, landscape and visual impact, construction traffic in rural areas and battery safety).
The Prospectus states that the “basic tier service is a higher risk consenting strategy for most applications as there will be far less opportunity for us to inform any key matters of concern prior to receipt of the application. [Applications that subscribe] to a basic tier service may be more likely to experience more challenging examinations and statutory maximum timeframes”. In our view, this reads as if PINS is trying to steer applicants away from using this tier, however the identified risk will be greatly reduced where an applicant is supported by an experienced team who have taken similar projects through the process before and know what to expect.
Standard: This is the default tier and is similar to the service that applicants have previously received from PINS. It is described as “an appropriate service for most projects ie those that are neither exceptionally straightforward nor exceptionally complex” and includes project update meetings between the applicant and PINS at key milestones in the pre-application process, a standard draft documents review service and an embedded risk review process. Given the resemblance to the current standard of service, this is proving to be a popular level of service for projects coming forward in these early days. However, there is no reason in principle why solar/BESS projects should require this if there are no bespoke issues/complexities which would otherwise merit greater engagement/scrutiny during pre-application.
Enhanced: This tier is reserved for the most complex of projects that give rise to issues less commonly encountered in DCO examinations. It is the most “hands on” of the tiers, with PINS adopting a ‘pre-emptive’ role, including “Enhanced Examining Inspector involvement in pre-application advice”. Projects that select this tier can also benefit from the “Fast-track” application process, which envisages applications moving from acceptance to a decision in 12 months. In our view, most solar/BESS projects should not need to use the enhanced service.
Each tier comes with a price tag: £62,350 for Basic, £126,050 for Standard and £208,850 for Enhanced. This is payable per year of service, thus potentially further penalising applicants who need to repeat rounds of consultation due to scheme changes.
Applicants must select one of the tiers and if there is disagreement with PINS on which tier is appropriate, PINS has the final say. PINS can however only mandate a “lower” level of service – so applicants need not be concerned that they could be forced into a more enhanced, and thus more expensive, service level.
Who does it affect?
PINS has issued ‘Expressions of Interest’ to all projects currently in the pre-application phase requesting that they confirm the preferred service level. All projects should expect to be confirmed within a service tier by the end of August 2024.
For projects that requested an Environmental Impact Assessment scoping report before 30 April 2024, charging will begin on 1 April 2025, except for projects opting for the enhanced service (for whom charging will begin on 1 October 2024). For any project which had not requested scoping by 30 April 2024, charging will begin on 1 October 2024.
What additional documents are needed?
New documents which applicants will now need to produce and maintain include:
- A Programme Document, setting out the “main steps that the applicant anticipates taking during the preparation of the application”. This must be prepared before the inception meeting with PINS and the applicant must publish it on its website. It should set out an ‘Adequacy of Consultation Milestone’ at which PINS can “test the progress of the consultation”. We cautiously welcome this, in the hope that it should provide a definitive statement from PINS on the adequacy of consultation to date, which may help to reduce the number of objectors who argue that consultation was inadequate simply in an attempt to cause delays.
- An Issues Tracker, which should “encourage dialogue and, where possible, achieve resolution”. As this should be made publicly available, it will need to be carefully prepared in how it presents outstanding issues so as not to expose projects to unnecessary risk. This then becomes a ‘Potential Main Issues for Examination’ document, to be agreed with statutory bodies and local authorities and submitted with the DCO application. Whilst this requirement may help to narrow issues for examination, we think it adds an extra layer of process to the already demanding requirements for pre-application engagement and consultation.
Implications
Our initial view is that, despite the admirable ambition of the changes, the new requirements are likely to lead to higher costs and resourcing requirements for applicants, without any guarantee that there will be a better and more effective level of service from PINS compared to before the reforms were brought in. Whilst the aim of the changes is to encourage greater collaboration and resolution of issues with stakeholders early on, we remain sceptical that this will deliver improved outcomes for projects and are concerned that it will not necessarily achieve the desired outcome of enabling the delivery of critical low carbon national infrastructure quickly and cost effectively.
