Guidance

Planning Act 2008: Infrastructure Planning (Fees) Regulations 2010 - cost recovery by the Planning Inspectorate and public authorities

Provides guidance on cost recovery by the Planning Inspectorate and public authorities enabled by Regulation 2A and Regulation 12A of the Infrastructure Planning (Fees) Regulations 2010.

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

Applies to England

Guidance on cost recovery for specified public authorities is statutory guidance and relates to amendments to the Infrastructure Planning (Fees) Regulations 2010. The remaining guidance is not statutory guidance and has been published to aid applicants and others engaged in cost recovery.

The purpose of this guidance

The following guidance relates to regulations made by the Secretary of State under section 4 and section 54A of the Planning Act 2008 (“the Planning Act”), which provide that certain prescribed public authorities and the Secretary of State may charge fees for certain services they provide in relation to Nationally Significant Infrastructure Project (NSIP) applications/proposed applications. The guidance on the regulations relating to section 54A of the Planning Act is statutory, and prescribed public authorities must have regard to this in relation to the exercise of their functions. The guidance on the regulations relating to section 4 of the Planning Act (cost recovery for the Secretary of State/Planning Inspectorate) is non-statutory. 

This guidance is an addendum to the existing Planning Act 2008: Infrastructure Planning (Fees) Regulations 2010 guidance and should be read alongside that. 

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Cost recovery for specified public authorities

What is the legislative background for these fees?

On 23 October 2023, the Levelling Up and Regeneration Act received Royal Assent, and introduced an amendment to the Planning Act by inserting section 54A, which provides that the Secretary of State may make regulations for certain public authorities to charge fees for relevant services they provide in relation to NSIP applications/proposed applications. Under this power, the Infrastructure Planning (Fees) Regulations 2010 (as amended) (“The Fees Regulations 2010”) have been amended to insert regulation 12A (plus Schedule 2) which provides that certain prescribed public authorities may charge fees to the applicant for relevant services they provide.

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What is the purpose of cost recovery for public authorities?

Cost recovery through the charging of fees enables specified public authorities to recover the costs of providing their services in relation to NSIP applications/proposed applications and is designed to resource public bodies so they can provide reliable, high-quality advice on the Pre-application, Acceptance, Pre-examination, Examination, Decision, and Post-decision/ implementation stages of NSIP applications/proposed applications.

For example, through the recovery of these fees public authorities will be robustly funded to work more collaboratively with applicants, throughout the consenting process, including prior to engaging with the Planning Inspectorate’s pre-application services.

Applicants should take particular account of the need to engage with, and provide the right level of information to, public authorities early in the consenting process, and ahead of engaging with the Planning Inspectorate’s pre-application service. This will be a key point at which applicants will be able to work closely with public authorities to identify any issues in their proposals and resolve these prior to submission. Further guidance will be set out in guidance on the pre-application stage. Where applicants are intending to apply for ‘fast-track’, and utilise the Planning Inspectorate’s enhanced pre-application service, they should make this clear to public authorities through these discussions as soon as possible. This will enable public authorities to take this into account in how they provide advice and support the applicant.   

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Which public authorities will be able to charge fees for relevant services in relation to nationally significant infrastructure projects?

The Fees Regulations 2010 enable certain prescribed statutory consultees to charge applicants a fee for providing relevant services.  

The public authorities that are able to charge under the Fees Regulations 2010 are listed in Schedule 2 and are as follows: 

The list is based on those organisations that are instrumental in the early identification and mitigation of impacts associated with water, wastewater, waste, energy, and transport infrastructure projects, that respond to a significant percentage of NSIP projects that they are consulted on, and that play a critical role across the whole Development Consent Order (DCO) application process.

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What services can public authorities charge a fee for, in relation to Nationally Significant Infrastructure Projects, and who can they charge?

Fees can be charged in relation to any advice, information or other assistance (including a response to a consultation) provided in connection with an application or proposed application, for an order granting development consent, or an application/proposed application to make a change to, or revoke, such an order, or any other prescribed matter relating to nationally significant infrastructure projects (Section 54A (2) of the Planning Act 2008).

These may include:

Example of relevant services

Stage Description of services
Pre-application Services provided to the applicant in relation to the preparation of a proposed application prior to the making of that application to the Secretary of State under section 37 of the Act. For example, such services may include, providing response to statutory and non-statutory consultations and assisting an applicant to prepare documentation prior to consultation and for submission. This would include any engagement with the pre-application services offered by the Planning Inspectorate (which will be set out in a Pre-application Prospectus available on the Planning Inspectorate’s website)
Pre-examination Services provided to the applicant or Examining Authority following acceptance of an application until the start of the examination of that application under Chapter 4 of Part 6 of the Planning Act. Such as attending pre-examination meetings.
Examination Services provided to the applicant or the Examining Authority from the start of the examination of the application under Chapter 4 of Part 6 of the Planning Act until the Secretary of State decides that application under Chapter 5 of Part 6 of the Planning Act. For example, such services may include attendance at hearings (where required) support with preparation of Statements of Common Ground and liaison with applicants outside of hearings.
Decision Services provided to the applicant or the Secretary of State whilst carrying out the function of deciding an application under Chapter 5 of Part 6 of the Planning Act. For example, such services may include responses to requests for information from Secretary of State to assist them in making a decision.
Post-decision and implementation Services provided to the applicant, the Secretary of State or any other person (for example, the Local Planning Authority). After the decision is made by the Secretary of State or in relation to implementation of the decision, such as the discharge of requirements.

In all cases the applicant, who will ultimately benefit from any development consent that may be given, will be liable to pay these fees. Public authorities and applicants are encouraged to discuss and agree practical arrangements so that timely services can be provided at each stage without delay.

Some public authorities have existing general powers to recover the costs associated with discretionary advice as well as other charges (such as for protected species licence from Natural England). The purpose of Regulation 12A, is not to replace those powers but it is to provide a legislative basis that enables prescribed public authorities to charge fees to recover costs for a wide range of services relating to NSIP applications and proposed applications across the whole DCO consenting process from pre-application to post consent. This regulation is without prejudice to any power to charge fees under section 43(1) of the Environment Act 1995(a), section 27 of the Marine and Coastal Access Act 2009(b) and section 33(6) of the National Heritage Act 1983(c).

Fees must not exceed the costs reasonably incurred in providing the relevant services, taking account of expenses which are reasonably incidental to provision of these services (see Regulation 12A (3)). However, this should only occur where it is reasonable to do so. Public authorities should discuss the possibility of such charges or instances with applicants as early as possible to ensure transparency. In addition, public authorities also must take account of government guidance on fees, charges and levies included in Government advice, published by HM Treasury in Managing public money.

This will enable public authorities to recover the costs associated with providing advice, including expenses associated (and VAT where applicable). This could include where additional professional expertise is needed in order to provide a service, or costs associated with site visits or attendance at examinations.

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How am I able to find out what the fees that public authorities charge are?

Information on fees

The public authorities that will charge fees in relation to the provision of relevant services will be required, to publish a statement on their website that will describe the relevant services in respect of which fees are charged, and the fees or method by which the fees will be calculated (as per Regulation 12A (4)). In addition, the statement should refer to any legislative provision under which the relevant services are provided.

Estimates of costs

Prescribed public authorities should ensure applicants understand the potential costs associated with the services they provide. The actual costs are likely to vary on a case-by-case basis, subject to the work required, and costs may change during the course of the work being done. But applicants and statutory consultees should discuss the potential costs, including where an applicant engaged the Planning Inspectorate through their pre-application advice service, at an early stage of the process and ahead of engaging the Planning Inspectorate’s pre-application services.

The amended Fees Regulations 2010 provide that public authorities may give the applicant an estimate of fees before providing a relevant service and it may be the case that some public authorities request an applicant to agree to these cost estimates prior to starting the work. This may be most appropriate at each consenting stage (including pre-application, examination and discharge of requirements). While the provision of an estimate of fees (see Regulation 12A(5)) is not mandatory, this would aid the applicant to understand and factor in potential costs when preparing their application.

Notification of costs

Prescribed public authorities must notify the applicant of the amount of the fee payable. This should confirm to the applicant what relevant services they, as a public authority, are providing/have provided and what those relevant services will/have cost. These notifications will, in effect, form an ‘invoice’ for the applicant for the amount due at that point. (Any reference made to ‘invoice(s)’ in this guidance are in relation to the notice required in 12A (6) of the Infrastructure Planning (Fees) (Amendment) Regulations 2024.) Where invoices are provided in advance of the work undertaken, applicants may subsequently request details from the public authority to confirm that the amount charged has been fully spent. Refunds will be offered if the entire cost has not been used.

Public authorities may break down their total fees into stages and issue multiple notices over the course of the consenting process which relate to different aspects of the service they will provide/have provided.

The applicant must pay the fee within the period specified by the public authority in their invoice (which should be at least 21 days from the date of the invoice) – Regulation 12A (7). Public authorities should issue this invoice within a reasonable timeframe (for example within 1 to 3 months of the relevant service being provided, or costs being incurred) and aim to provide a notification monthly where practicable.

Further information regarding how to pay a public authority, when to make the payments and guidance surrounding how fees are calculated will be set out by individual statutory consultees through the information on their website (see Regulation 12A (6)) and in their notification.

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What happens if the fees are not paid?

If an applicant does not pay for a service provided by a statutory consultee following receipt of the notice, public authorities are able to withhold a relevant service or services, where it has not yet been provided, until the fee has been paid. Applicants should note that this is notwithstanding any statutory requirement to provide the relevant services. This could have an impact on the progression of a project (for example, delays to examination, a decision whether or not to grant development consent, or the discharging of requirements) should the public authority withhold services as a result of non-payment. Applicants are advised to discuss any concerns directly with the statutory consultee and seek to resolve any issues through this route. A statutory consultee may recover the unpaid fees from the applicant as a civil debt, particularly if an applicant is persistent in not paying fees incurred (Regulation 12A (8)).

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When will public authorities begin charging under the Infrastructure Planning (Fees) Regulations 2010?

Public authorities are able to charge fees for relevant services provided from 1 April 2024. In order to prevent delays in live projects, public authorities and applicants should communicate openly and transparently to understand the expectations of both parties as a result of these fees to avoid delays to consenting. This is particularly important for those projects where a Rule 6 letter (Rule 6 of the Infrastructure Planning (Examination Procedure) Rules 2010) has been issued and which have not yet been determined – including projects at examination. 

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Information about fees for public authorities

Which public authorities have implemented fees under the Planning Act?  

Regulations enable public authorities charge from 1 April 2024. The following public authorities are, or will shortly be, implementing cost recovery:

  • Environment Agency – Cost recovery on new projects from 1 April 2024. Existing projects in the pre-application stage will be charged from 1 April 2024. Other existing projects will be charged once they move to the next phase of the development consent order process, or from 1 October 2024 if they have not moved to the next phase before then. Cost recovery agreements set-up using existing powers remain valid after 1 April 2024. Further information can be found in Environment Agency fees and charges.

  • Natural England – Will be ready to commence cost recovery during April and will be approaching all applicants to agree charges as soon as is practicable. Further information can be found in Environmental advice on our planning proposals.

  • National Highways – Commence cost recovery on new projects from 1 April. National Highways will liaise directly with promoters of existing projects to discuss transition arrangements. Further information can be found in Planning and the strategic road network in England.  ​

  • Historic England – Commence cost recovery on new projects, from April 2024. Existing projects, will be charged once they move to the next phase of the development consent order process. Further information can be found in Major Development Schemes and Infrastructure

  • Marine Management Organisation (MMO) – Commence cost recovery from 1 May for the remaining elements of NSIP work which the MMO do not already charge for (i.e. post submission of application, including pre-examination and examination) Further information can be found in Marine licensing: nationally significant infrastructure projects

For the purposes of the above: new projects are those which the public authority is not yet engaging with at the date that they introduce these fees; existing projects are those which the public authority is engaging with at the date that they introduce these fees. Reference to the ‘next phase of the development consent order process’ refers to the different stages of the pre-application process (e.g. pre-application, submission, acceptance, examination, decision, post-decision). Applicants and statutory consultees should communicate openly and transparently in line with the above guidance.

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Cost recovery for the Planning Inspectorate (on behalf of Secretary of State) for Pre-Application Services

What is the legislative background for these fees?

Section 4 of the Planning Act, provides that the Secretary of State may make regulations providing for the charging of fees by the Planning Inspectorate (on behalf of the Secretary of State). Under this power, the Fees Regulations 2010 have been amended to insert Regulation 2A (and Schedule 1) which provides that the Secretary of State may charge fees in relation to the provision of pre-application services.

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What is the purpose of cost recovery for the Planning Inspectorate?

Cost recovery through the charging of fees enables the Planning Inspectorate to recover the costs of providing their pre application services outlined in their Pre-Application Prospectus. Cost recovery enables the Planning Inspectorate to provide consistent services during the pre-application stage of NSIP applications/proposed applications. These fees must not exceed the costs reasonably incurred by the Planning Inspectorate in providing the pre-application services.

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What are the pre-application services for which fees apply?

Pre-application services are services provided to the applicant by the Secretary of State in connection with the Secretary of State’s major infrastructure functions in relation to a proposed application (and include the services listed in Schedule 1 to the Fees Regulations 2010). The Planning Inspectorate, on behalf of the Secretary of State, offers these pre-application services to support potential applicants with the preparation of applications for development consent. These services will support a front-loaded consenting process through detailed engagement between the applicant and the Planning Inspectorate to enable smoother and potentially faster post-submission stages. Cost recovery provides the resource to allow the Planning Inspectorate to engage with projects in a way that reflects individual projects needs in order to ensure appropriate advice and services are given to applicants. Separate guidance will be published on the pre-application stage of the consenting process, including the Planning Inspectorate’s pre-application services. Regulation 2A and Schedule 1 of the Fees Regulations 2010, enable the Planning Inspectorate to charge fees in respect of their pre application services.

”Pre application services” for which a fee can be charged is defined in regulation 2A(8) and includes services listed within Schedule 1, of the Fees Regulations 2010. These services may relate to:

  • giving advice to the applicant under section 51(1) of the Planning Act
  • the environmental impact assessment process under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017
  • giving advice on matters relating to the timetable for examination and the preparation of applications in relation to the fast-track route
  • services provided to the applicant in relation to any matters which the Secretary of State thinks may be both important and relevant to the Secretary of State’s decision under section 104 (Decisions in cases where national policy statement has effect) and section 105 (Decisions in cases where no national policy statement has effect) of the Planning Act.

Further information relating to the services can be found in the Planning Inspectorate’s Pre-Application Prospectus.

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How should applicants seek pre-application services and when will fees become payable?

The Planning Inspectorate will offer pre-application services to the applicant throughout the pre application stage that are designed to suit the needs of the individual project. These services will be set out in a Pre-Application Prospectus, published by the Planning Inspectorate, together with information about the costs of the different services they provide. The Pre-Application Prospectus will also provide advice for applicants to identify the right level of service required and how to request provision of the pre-application services.

Applicants should consider the Planning Inspectorate’s Pre-Application Prospectus and what they consider to be the appropriate level of service required for their project. This should be ahead of the formal inception meeting with the Planning Inspectorate, taking account of the complexity of the project, what resource may be needed and the timing of that support alongside wider input that will be required to resolve project specific issues (e.g. surveys to inform environmental assessments, early engagement with local communities etc). Applicants are advised to start informal discussions with the Planning Inspectorate early enough in development of their project to assist with preparation of the proposed application. This may take place after initial engagement with relevant bodies, including public authorities and local authorities, which the applicant will need to seek advice from through the pre-application process. When the applicant requests an inception meeting with the Planning Inspectorate, this will be considered as notifying the Planning Inspectorate that they are requesting pre-application service (paragraph (1) of Regulation 2A). 

Fees for pre-application services apply to all proposed applications, from the inception meeting. Applicants should use this meeting to provide the Planning Inspectorate with a full description of the proposed application, the application’s progress to date and an indicative Programme Document (subject to change). This will support the applicant and the Planning Inspectorate to finalise the appropriate type and level of pre-application service. Further guidance can be found in the Pre-Application Guidance (once published).

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How will the fee be set?

The Fees Regulations 2010 as amended enable the Planning Inspectorate (on behalf of the Secretary of State) to charge fees to recover the costs of their pre-application services. These fees must not exceed the costs reasonably incurred by the Planning Inspectorate in providing the pre-application services. The Planning Inspectorate will take account of government guidance on fees, charges and levies included in Managing public money. 

The Fees Regulations 2010 prescribe a fee of £2,300 multiplied by the number of relevant days. ‘Relevant day’ means a day on which the Planning Inspectorate, on behalf of the Secretary of State, provides pre-application services. This amount is subject to annual indexation based on the Consumer Price Index 12-month percentage rate in accordance with the Fees Regulations 2010. The Pre-Application Prospectus sets out different levels of service on offer, intended to suit the different needs of different projects, and sets out the number of relevant days associated with the services they offer. The Planning Inspectorate will update the Pre-Application Prospectus annually to take account of indexation and may periodically revise the services they offer including the number of relevant days required to deliver the service (Regulation 12).

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How will applicants be charged by the Planning Inspectorate?

The Planning Inspectorate must give notice in writing to the applicant/proposed applicant of the amount that is payable at that point, setting out the number of relevant days and the fee (the notice defined in paragraph (3) of Regulation 2A is therefore the invoice that an applicant will need to pay). The fee is £2,300 multiplied by the number of relevant days, subject to annual indexation as set out above. The applicant/proposed applicant must pay the invoice within 28 days beginning with the date of the notice.

The Planning Inspectorate may break down the total fee into stages and may issue multiple invoices over the course of their provision of the pre-application service, at different points in delivery of the service. The Planning Inspectorate’s Pre-Application Prospectus sets out the usual invoicing cycle for their pre-application services.

In some circumstances the Planning Inspectorate may repay, waive (in whole or in part) or reduce the fee. This may be the case, for example, where the applicant and the Planning Inspectorate agree to alter the level of service being provided.

Further information regarding how to pay the Planning Inspectorate, when to make the payments and guidance surrounding how the ‘relevant days’ inform the overall fee is set out in the Pre-Application Prospectus. 

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What happens if an applicant fails to pay?

The applicant will be made aware of their obligation to pay for the services they will be using after the inception meeting with the Planning Inspectorate. The Planning Inspectorate outline, within the Pre-Application Prospectus, the payment procedures, and the points during the provision of the service at which they will issue the invoice set out above. If the applicant fails to pay the fee within 28 days, the Planning Inspectorate will not provide the applicant with any further pre-application services or take any further steps in relation to the proposed application. This is because cost recovery, through payment of the fee, is intended to enable the Planning Inspectorate to resource the pre-application services. Therefore, if there is a failure of payment, the Planning Inspectorate is able to choose not to engage with the project until payment has been made. This may lead to delays to a decision on the acceptance of a project, or, for proposed fast-track projects, failure to meet the required quality standard. 

The Planning Inspectorate set out information on how payment should be made, and implications if the fee is not paid, in their Pre-Application Prospectus.

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Can an applicant withdraw from enhanced pre application services or alter their service?

Applicants are able to withdraw from the services or seek to vary the level of pre-application services. Withdrawal from the service would mean those pre-application services offered by the Planning Inspectorate would cease and only those services already provided would be subject to charging. In the case of any outstanding fees, this would be considered as above. See What happens if an applicant fails to pay? for further information. Applicants should discuss any intention to alter the level of service as early as possible. The way in which the applicant should give their notice or request for a change in writing to the Planning Inspectorate will set out in their Pre-Application Prospectus. To enable the Planning Inspectorate to offer the right level of support, variation should be done early in provision of the service (for example for an agreed level of service for twelve months, any variation should be sought in the first 6 months).

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How will existing projects transition to the new cost recovery model from 1 April 2024?

To support the introduction of pre-application services the Planning Inspectorate will issue an Expression of Interest to all projects they have been engaging with to ascertain resourcing requirements. The Planning Inspectorate’s Pre-Application Prospectus will provide more detail of non-legislative transitional arrangements for cost recovery. Further to these regulations, the Planning Inspectorate will publish detailed information about their pre-application services and fees, and work with applicants to introduce services in a sustainable way, with the recovery of costs for services provided expected from October 2024.

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Published 17 April 2024
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