Guidance

Planning Act 2008: Acceptance stage for Nationally Significant Infrastructure Projects

Guidance on the acceptance stage for Nationally Significant Infrastructure Projects.

From:
Department for Levelling Up, Housing and Communities
Published
30 April 2024

Applies to England

Acceptance

The purpose of this guidance

This National Infrastructure Planning Guidance (“guidance”) sets out the requirements and expectations during the acceptance stage for a Nationally Significant Infrastructure Project (NSIP).

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The Planning Inspectorate decides whether or not an application for development consent can be accepted for examination on behalf of the Secretary of State. The application must comply with the requirements specified in the Planning Act 2008 (as amended) (“the Planning Act”), including the pre-application publicity and consultation on a proposed application, and must be of a satisfactory standard to be examined.  

The decision of whether or not to accept an application must be taken within the fixed period of 28 days beginning with the day after the day on which the Planning Inspectorate receives the application. The Planning Inspectorate must charge the applicant a fee in respect of the decision under section 55 of the Planning Act (acceptance of applications), and details of the current fee charges are provided by the Planning Inspectorate.

In looking at the application documents in order to reach a decision on whether to accept an application for examination, the Planning Inspectorate’s judgement will be based on:

  • whether the requirements and procedures set out in the Planning Act and associated secondary legislation have been met and complied with, including all prerequisites relating to the content and form of the application;

  • the extent to which the applicant has had regard to this guidance and statutory guidance issued by the Secretary of State pursuant to section 50 of the Planning Act (i.e. guidance covering pre-application);

  • the applicant’s consultation report detailing the pre-application consultation and publicity of the application, consultation responses received, and the account taken of any relevant consultation responses;

  • any representation from the relevant local authority or authorities as to whether the applicant has complied with sections 42, 47 and 48 of the Planning Act (the “adequacy of consultation” representation);

  • whether all applicable requirements of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (as amended) (“the EIA Regulations 2017”) have been met;

  • whether the applicant has discharged its obligations under the Conservation of Habitat and Species Regulations 2017 (as amended), and the Conservation of Offshore Marine Habitats and Species Regulations 2017 where appropriate; and

  • the content and overall quality of the application in terms of the ability of the Examining Authority to be able to examine it within the maximum 6-month statutory time period.

Where the Planning Inspectorate decides an application can be accepted, the applicant must be notified of this decision and also reminded of its duty to comply with all relevant statutory and regulatory requirements. These include the requirement to notify all prescribed parties of the application and the deadline for the receipt of relevant representations, and to make the application available in accordance with Regulation 9 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure Regulations 2009 (as amended) (the “APFP Regulations 2009”). The applicant must certify to the Planning Inspectorate that it has complied with these requirements pursuant to section 58 of the Planning Act before examination of the application can commence.

Where the Planning Inspectorate concludes that an application cannot be accepted, the applicant must be notified of this decision and the reasons for the Planning Inspectorate’s refusal to accept an application.

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What are the acceptance tests?

The full criteria to be applied in deciding whether to accept an application are detailed in section 55(3) of the Planning Act. An application may only be accepted if the Secretary of State concludes that:

  • it is an application for an Order granting development consent;
  • development consent is required for any of the development to which the application relates;
  • the applicant has complied with Chapter 2 of Part 5 of the Planning Act (pre-application procedure); and
  • the application (including accompaniments) is of a standard that the Planning Inspectorate (on behalf of the Secretary of State) considers satisfactory.

To help its decision-making on whether or not applications are of a satisfactory standard to be accepted for examination, the Planning Inspectorate has developed an Acceptance of applications checklist based on the criteria set out in section 55 of the Planning Act, and incorporating the various requirements of sections 42, 47, 48 and 49, the EIA Regulations 2017 and the APFP Regulations 2009.

This checklist is published by the Planning Inspectorate and most applicants find it helpful in preparing their applications, and indeed include their version of it as part of the application documents. Whilst applicants are strongly recommended to complete the checklist, it is not a statutory requirement however, and it is for the Planning Inspectorate to reach a conclusion on behalf of the Secretary of State as to whether the acceptance tests have been met.

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Applications for Environmental Impact Assessment (EIA) Development

It is nearly always the case that the project for which a Development Consent Order (DCO) is sought will be Environmental Impact Assessment (EIA) development as defined in the EIA Regulations 2017.

An application for a DCO which is EIA development must be accompanied by an Environmental Statement (ES) which contains the required descriptions and information relating to the proposed development and environmental matters, as detailed in Regulation 14 and Schedule 4 to the EIA Regulations 2017.

If such an application is submitted which does not include an ES, consideration of the application would be suspended until the ES is provided under Regulation 15 (4) of the EIA Regulations 2017.

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Habitat Regulations Assessment

As referred to in the pre-application guidance, the Habitat 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.

Full HRA material must be provided by the applicant 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.

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What is adequacy of consultation?

Applicants are required by section 47 of the Planning Act to publish a statement of how they propose to consult the local community (commonly called the Statement of Community Consultation (SoCC)). The applicant must consult with directly affected local authorities (as defined in section 43 of the Planning Act) on the proposed consultation programme set out in the SoCC and must have regard to any response received from a relevant local authority regarding this.

Section 47 of the Planning Act then requires an applicant to carry out consultation in accordance with the proposals set out in the SoCC. The applicant must have regard to relevant responses (as defined in section 49 of the Planning Act) received from the consultation and publicity undertaken regarding a proposed application. A mandatory application document is a consultation report which will include a description of how the application has been shaped as a result of those responses.

Upon submission of an application, as required by section 55(4)(b) of the Planning Act, the Planning Inspectorate will invite all relevant local authorities to make representations if they wish about the adequacy of the applicant’s consultation and publicity arrangements in accordance with the SoCC. Adequacy of consultation representations will normally be required from local authorities within 14 days of the invitation to submit them from the Planning Inspectorate, in order to meet the acceptance decision deadline. The relevant local authorities will have been involved during the preparation of the application and will therefore be aware of the acceptance timetable. They should ensure that they have suitable arrangements in place to be able to respond to this request.

Any such representations submitted by local authorities in response must be limited to whether the applicant has complied with the applicant’s duties under sections 42, 47 and 48 of the Planning Act, and not broader matters such as the merits of the application itself.

The Planning Inspectorate must have regard to these representations in reaching its conclusion on behalf of the Secretary of State about whether an applicant has complied with the pre-application procedures set out in Chapter 2 of Part 5 of the Planning Act.   

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Who can make adequacy of consultation representations?

Representations about the adequacy of consultation are sought only from local authorities during the acceptance stage. It is not uncommon for other parties, particularly community groups and parish councils, to submit their views about an applicant’s consultation programme (and indeed often wider matters), but there is no statutory requirement for the Planning Inspectorate to take these into account as part of its decision about acceptance or otherwise of the application.

Applicants must demonstrate to the Planning Inspectorate that they have acted reasonably in fulfilling the requirements of the Planning Act in taking account of responses to consultation and publicity. Where any person or consultee feels that consultation was inadequately carried out, they should approach the applicant in the first instance. If any person or consultee remains dissatisfied, they can bring this to the attention of the relevant local authority who can in turn consider this as part of their representation to the Planning Inspectorate on the adequacy of consultation. 

There have been instances where the adequacy of consultation representations submitted by local authorities have led the Planning Inspectorate to conclude that the consultation requirements of the Planning Act have not been met, and the application has therefore not been accepted for examination. To reduce the risk of this situation arising, local authorities are encouraged to raise issues on the adequacy of consultation with the applicant early in the pre-application stage and if necessary, bring these to the attention of the Planning Inspectorate at the adequacy of consultation milestone stage before the submission of an application.

Separately, where an interested party believes they have identified an issue relating to consultation which has not been adequately addressed by the applicant, despite raising it with them, they should consider making a relevant representation (see guidance about relevant representations in the pre-examination stage) about the matter, if the application has been accepted. This will ensure this issue is considered during the examination. It is important to note, however, that the acceptance decision cannot be re-opened by the Examining Authority during the examination, however strongly a particular interested party feels about the matter.

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What is the standard of application required to be accepted to proceed to examination?

The essential content of an application for development consent is set out in section 37 of the Planning Act and Regulation 5 of the APFP Regulations 2009. Applications for certain types of NSIPs must include additional documentation, as specified in Regulation 6 of the APFP Regulations 2009. Assessing whether the range of documents submitted complies with these requirements is a relatively straightforward aspect of the acceptance process.

Determining whether these documents are of a satisfactory standard, as required by section 55(3)(f) of the Planning Act is sometimes not as straightforward, because each application is different in scale and complexity. It is therefore difficult to set out universal standards for the range of documents, but applicants should comply with the following pursuant to section 37(5) and (6) of the Planning Act:

  • The application must be clear as to what is being applied for and must be accurately represented on the submitted plans. There are instances of an application submitted for acceptance having elements of the proposed authorised development set out in the draft DCO, typically the numbered works in Schedule 1 to the Order, which differ from those shown on the works plans. Applicants are required to ensure that there is no ambiguity or conflict in the description of the proposed development throughout the application documents submitted for acceptance.

  • Applicants are therefore advised to carry out a full review of the draft DCO, Explanatory Memorandum, Statement of Reasons, Book of Reference, Environmental Statement and Habitats Regulations Assessment, where appropriate, to ensure that cross referencing between each of these documents and the works and land plans is accurately recorded and interact as intended. Basic errors or repeated discrepancies risk an application not being accepted. There should be no reliance on remedy through submission of revised documents post acceptance.

  • Submitted plans must accurately reflect the proposed development and clearly indicate the proposed scale, massing and design of the NSIP. There have been cases where such fundamental principles of a proposed development, particularly where the infrastructure proposed is of a substantial bulky nature, are difficult to ascertain from the application documents and have led to the application not being accepted. Given that many applications present a proposal within a ‘Rochdale Envelope’ approach reflecting the worst-case scenario, the ultimate physical implementation of a proposed development may not be fully worked up at the time of submission. Nonetheless applicants are expected to be able to convey to the Planning Inspectorate, Examining Authority and all the participants in an examination the maximum parameters of the proposed development, its nature and scale and likely appearance in accordance with the requirements of the Rochdale Envelope.

  • Whilst it is a matter covered in guidance dealing with the content of a DCO, the expectation now in the light of experience is that a Planning Statement is submitted which explains the proposed development, the policy context for the application and the range of issues which arise, pursuant to Regulation 5(1)(q) of the APFP Regulations 2009.

A satisfactory standard of application is one which is internally consistent and proportionate in scale and content to the proposed development, concise, clearly written, and well-structured in terms of navigability through the range of documents. Unless applications meet these standards overall, they are unlikely to be capable of proper assessment during the acceptance period and run the risk of the application not being accepted.

Whilst it is for the Planning Inspectorate to deploy the staff it chooses to carry out the acceptance function, the perspective of an Examining Inspector is valuable in the assessment process given that the purpose of doing so is to determine that the application is considered suitable to proceed to examination. Wherever possible, it is desirable that an Examining Inspector assigned to contribute to the assessment process 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.  

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How does the applicant provide notification of an accepted application to the prescribed persons and bodies?

If an application is accepted by the Planning Inspectorate to proceed to examination it is the responsibility of the applicant, in accordance with section 56 of the Planning Act and Regulation 8 of the APFP Regulations 2009, to notify each of the prescribed persons and bodies (including those persons defined in section 56(2)(d) of the Planning Act).

The notice should include, amongst other requirements, a summary of the main proposals and the application. The applicant must also publicise the accepted application more generally in accordance with Regulation 9 of the APFP Regulations 2009. Applicants are required to post a site notice and make all the application documents available on a website maintained on behalf of the Secretary of State. In practice, this is the project page of the National Infrastructure Planning website operated by the Planning Inspectorate, with whom applicants must liaise closely to fulfil this requirement.

In the above notice and publicity, applicants must provide details of how to make representations about the accepted application and to set a deadline for their receipt by the Planning Inspectorate. This deadline must be notified both to the persons and bodies prescribed in the Planning Act and the APFP Regulations 2009, but also to anyone who wishes to become involved in the examination of the application as a result of the wider publicity of its acceptance. The expectation in this guidance is that this period for making representations will not exceed 8 weeks.

Such a representation is termed a ‘relevant representation’ under section 102 of the Planning Act, and is the mechanism by which a person becomes an interested party for the purposes of the examination. The definition of an ‘interested party’ is a significant one, because interested parties are given important entitlements before, during and after the examination process. Further detail on interested parties and relevant representations is set out in pre-examination guidance.

Applicants should also be aware of the additional publicity, consultation and certification requirements for accepted applications involving EIA (Regulations 16 and 17 of the EIA Regulations 2017). Finally, the applicant must certify to the Planning Inspectorate that the obligations of section 56(2)(a) of the Planning Act have been complied with by sending a certificate of compliance within ten working days of the closing date set for the submission of relevant representations (Regulation 10 of the APFP Regulations 2009).

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Who should be consulted about an accepted application?

It is the applicant’s responsibility to ensure all relevant consultees are notified about an application. 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 56(2) of the Planning Act (notifying persons of an accepted applications) and also section 42(1)(a) of the Planning Act (duty to consult).  

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How and where should application documents be published?

The legislative requirements of section 48 of the Planning Act and Regulation 9 of the APFP Regulations 2009 are that the application documents are published once the application has been accepted for examination.

However, in order to help everyone become familiar with the detail of what is being proposed in an application at the earliest opportunity, applicants are encouraged to publish application documents on their own website either before or at the same time as submission of the application to the Planning Inspectorate. In addition, provided the applicant agrees, the Planning Inspectorate will aim to make application documents available on the relevant project page of the National Infrastructure Planning website as soon as practicable after submission. The website allows anyone to sign up to receive project specific updates through email notifications when new items are added to the project page.

These earlier informal publication arrangements are solely for the purpose of allowing more time to all those who wish to become familiar with the detail of what is being proposed ahead of the opening of the relevant representation period. There will be no opportunity at this stage to make comments on the application.

It is only the information that the Planning Inspectorate receives in the submitted application that is relied on for acceptance and subsequent examination. Applicants should therefore ensure that any information published on their website that is integral to the application is also formally submitted to the Planning Inspectorate.

Once the application is accepted for examination by the Planning Inspectorate anyone interested in the application will be able to register and express their views during the relevant representation stage. In circumstances where an application is not accepted for examination, the application documents will be removed from the National Infrastructure Planning website. 

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