Guidance

Planning Act 2008: Guidance on powers to direct a project into or out of the NSIP regime

Guidance on powers to direct a project into or out of the Nationally Significant Infrastructure Projects (NSIP) regime

• From: Ministry of Housing, Communities and Local Government
• Published: 3 July 2026

Applies to England and, in limited circumstances, to Wales and Scotland

1. The purpose of this guidance

1.1 This National Infrastructure Planning Guidance (“guidance”) relates to sections 35, 35ZA, 35A, 35B, 35C and 35D of the Planning Act 2008 (with sections 35B to 35D inserted by section 4 of the Planning and Infrastructure Act 2025) (the “PIA 2025”).

1.2 This guidance provides supporting detail and expectations in relation to the section 35 power to direct that a project is to be treated as development for which development consent is required, and the section 35B direction-making power to disapply the requirement for development consent. It is intended to support persons considering whether to seek a direction under section 35 or section 35B, and to set out supporting information relevant to decision making and the procedure connected with directions. The guidance relating to section 35 directions should be read in conjunction with the 2013 policy statement ‘Extension of the nationally significant infrastructure planning regime to business and commercial projects’.

1.3 This guidance should be read in conjunction with the Introduction to National Infrastructure Planning Guidance, which includes information about audience, legal status and territorial extent of the full guidance suite.

Territorial Application

1.4 Directions may only be given where the development will (when completed) be wholly in England (or waters adjacent to England up to the seaward limits of the territorial sea), or in the case of development in the field of energy, in a Renewable Energy Zone (except any part of the Zone where the Scottish Ministers have functions).

2. Section 35 Directions – ‘direct-in’ power

2.1 Section 35 of the Planning Act provides that the Secretary of State may direct that a project is to be treated as development for which development consent is required (direct-in power). The purpose of section 35 is to allow projects considered by the Secretary of State to be of national significance to be determined through the Nationally Significant Infrastructure Project (NSIP) regime, where they do not meet the statutory meaning and thresholds for NSIPs set out in Part 3 of the Planning Act. In deciding whether to give a direction, the Secretary of State will consider whether the project is of national significance, having regard to its nature, scale, and potential economic impact (see paragraph 4.1).

2.2 Where a section 35 direction is given, the development will be brought within the NSIP regime and must be consented through a Development Consent Order (DCO).

2.3 In practice, a single DCO application may relate to more than one NSIP where those elements form part of the same overall scheme. For example, a single application could include development that is an NSIP in one of the specified infrastructure fields, such as energy, transport, water, wastewater or waste, together with a prescribed business or commercial project for which a section 35 direction has been given. A project may also include related elements across different fields where those elements form part of, support, or are closely connected to the overall project. For example, a nationally significant manufacturing project could include related energy or transport infrastructure where that infrastructure is integral to the project as a whole.

Section 35 Direction Requests

2.4 The Secretary of State may exercise their power to give a direction for projects in the specified fields (energy, transport, water, wastewater and waste) only in response to a qualifying request if no application for a consent or authorisation mentioned in section 33(1) or (2) of the Planning Act has been made in relation to the development.

2.5 The power in section 35 to give a direction in respect of a business or commercial project of a prescribed description (as listed in the Schedule to the Infrastructure Planning (Business or Commercial Projects) Regulations 2013 (as amended)) is exercisable only in response to a qualifying request. In this case, such a request can only be made by a person who: (i) proposes to carry out any of the development to which the request relates, (ii) has applied (or proposes to apply) for a consent or authorisation mentioned in  section 33(1) or (2) of the Planning Act in relation to any of that development, or (iii) if the section 35 direction is given, proposes to apply for an order granting development consent for any of that development. Prescribed categories include office use, research and development of products or processes, an industrial process or processes, storage or distribution of goods, conferences, exhibitions, sport, tourism, and the winning and working of minerals (other than peat, coal or gas) in or under land.

2.6 Where all or part of the development is or will be in Greater London, and the development is, or forms part of, a prescribed business or commercial project, the Secretary of State may give a direction only with the consent of the Mayor of London. That agreement should be obtained before a direction is requested. The Secretary of State would also not normally expect to receive requests for projects in Greater London that would not be considered as applications of potential strategic importance in London under the Town and Country Planning (Mayor of London) Order 2008.

3. Information to support a section 35 request

Qualifying Request

3.1 A “qualifying request” means a written request for a direction under section 35(1) or (3) to the relevant Secretary of State, which should be made via email to the relevant department, specifying:

• the development to which it relates, (which should include a detailed description of the development, including its location, nature, scale, purpose and relevant local authority area(s))
• confirmation that the project is, or forms part of, a project within the specified fields in section 35(2)(a)(i) or a business or commercial project of a prescribed description in section 35(2)(a)(ii)
• confirmation that the project will (when completed) be wholly in England (or waters adjacent to England up to the seaward limits of the territorial sea), or in the case of a project in the field of energy, in a Renewable Energy Zone (except any part of the Zone where the Scottish Ministers have functions)

3.2 As part of the request, the requestor should provide any information that may assist the Secretary of State in deciding whether to give a direction. The relevant Secretary of State, in deciding whether to give a direction, is the same as the relevant Secretary of State for decision as set out in the decision-making stage of an application.

National Significance

3.3 The Secretary of State may only give a direction if they think the project, or proposed development, is of national significance. The decision will be made in consideration of the information provided by the requestor. The request should explain why the requestor considers the project is of national significance, including any feature which supports that view. This may include, for example, whether the project is likely to have a significant economic impact or support economic growth; whether its impacts would be felt across an area wider than a single local authority area; whether it is of a substantial physical size; or whether it is important to the delivery of an NSIP or other significant development. The Secretary of State may also consider any relevant National Policy Statement (NPS) and other government policies.

3.4 Where relevant to the case for national significance, the requestor should identify any current government priorities, published policy statements, strategies or other documents that support the request. The requestor should explain how those documents are relevant to the project and to the case for treating it as development for which development consent is required.

3.5 Where a direction is given, section 35ZA of the Planning Act requires the Secretary of State to publish that direction. Published directions may assist requestors in understanding the type of information that has been considered in previous cases. However, each request will be considered on its own merits, having regard to the statutory requirements and all relevant matters. In addition to the matters set out above, the requestor should explain whether there are features of the project which would support it being considered through the NSIP regime. This may include whether the project is likely to require multiple consents or authorisations and would therefore benefit from the single authorisation process available under the NSIP regime. The requestor should also explain whether the project is related to an NSIP being brought forward at the same time, and whether there would be benefits in the projects being considered together through a single application under the Planning Act. In practice, requestors may wish to provide, where available, any views expressed by the relevant consenting authority or authorities, including any views on the project’s scale, complexity, cross-boundary effects, relationship with other development, or the suitability of local consenting routes. These views may provide relevant supporting context, but the decision on whether to give a section 35 direction remains for the Secretary of State, based on the legal and policy framework.

3.6 Where a project includes an element of retail, commercial or other mixed-use elements, the requestor should explain the main purpose of the development and how those elements relate to the overall project. This should include whether the project is retail-led, noting that the Secretary of State would not expect to receive requests where a project is retail-led.

3.7 Each request will be considered on its own merits, but the Secretary of State would expect those developers preparing to make a request to consider the following:

• although size in itself will not be the determining factor in whether a project is nationally significant or not, the Secretary of State would not normally expect to receive requests for directions in relation to projects that are not of a substantial size. Further detail is set out in the 2013 policy statement
• some specific types of development cannot be included in applications under the Planning Act regime. Housing is generally excluded from the NSIP regime and can only be included as “related housing development” if it has a strict functional or geographical link to a major infrastructure project, subject to a limit of 500 homes (set out in Part 1: Pre-application steps of the guidance on preparing an application). The government’s view is that determining planning applications for housing is a primary responsibility of local planning authorities who should be responsible for ensuring an adequate supply of housing in their area
• proposed developments involving the extraction of peat, coal, oil and gas are also excluded. Such proposed developments should normally be dealt with by minerals planning authorities for peat and coal or, for offshore oil and gas, by the Department for Energy Security and Net Zero and the North Sea Transition Authority

Requests where an application for a section 33 consent or authorisation has been made or is proposed

3.8 If the Secretary of State gives a direction under section 35(1) in relation to development, they may also give a direction under section 35(ZA)(3). Where an application has been made, or is proposed to be made, for a consent or authorisation mentioned in section 33(1) or (2) of the Planning Act, for example non-DCO consents, such as planning permission, the Secretary of State may direct that such application/proposed application be treated as an application/proposed application for development consent. Requestors should be clear when they are requesting a direction under section 35ZA(3) in their qualifying request and should specify the relevant non-DCO consent or authorisation in their request, explain its status, and explain why such application/proposed application should be treated as an application/proposed application for development consent.

3.9 Where a request is made in a case falling within section 35ZA(3), any direction made under this subsection may provide for specified provisions of the Planning Act (or any other Act) to be modified, or to be treated as having been complied with in relation to the application or proposed application (s.35ZA(5)). In such a case, the requestor should identify any steps already taken, or requirements already complied with, in relation to the consent in section 33(1) or (2) of the Planning Act. This may include, for example, pre-application engagement, consultation, publicity, notification, Environmental Impact Assessment, Habitats Regulations material, land and rights information, application documents already prepared or submitted, representations received, validation or acceptance steps, procedural timetables, or other procedural or application requirements. The requestor should explain whether, and why, those steps are equivalent to requirements that would otherwise apply under the Planning Act.

3.10 In deciding whether to include provision under section 35ZA(3) and (5) of the Planning Act, the Secretary of State will consider the particular circumstances of the case. Relevant considerations may include whether the provision would avoid unnecessary duplication of steps already taken; whether those steps remain up to date and sufficiently equivalent to the relevant requirement; whether affected persons and consultees have had an appropriate opportunity to participate; whether further information, consultation or publicity is needed; and whether the provision would support a fair, coherent and proportionate transition of the application or proposed application into the Planning Act regime.

3.11 If the Secretary of State gives a direction under section 35ZA(3) of the Planning Act, the relevant authority must refer the application or proposed application to the Secretary of State. While the Secretary of State is considering whether to give such a direction, the relevant authority may be directed to take no further action in relation to the application, or proposed application, until that decision has been made. The Secretary of State may also require the relevant authority, or another authority within section 35ZA(9) of the Planning Act, to provide information for the purpose of deciding whether to give a direction and, if so, the terms on which it should be given.

4. Section 35 Direction Decisions

4.1 When deciding whether to give a direction under section 35, the Secretary of State will consider all relevant matters, including:

• whether the project (or proposed project) is, or forms part of, a project in section 35(2)(a)(i) or (ii)
• whether the development will be wholly in England or in the case of a project in the field of energy, a Renewable Energy Zone (except any part to which Scottish Ministers have functions)
• whether the project is of national significance, taking into account all relevant matters such as:
  • its economic impact and contribution to economic growth, infrastructure delivery or other national objectives
  • the scale of the project’s impacts, including whether they go beyond a single local authority area
  • the complexity of the project, and whether it is likely to require multiple consents or authorisations, which would mean that it would benefit from the scheme being considered as a single application through a DCO
  • whether the project is related to a NSIP being brought forward at the same time and therefore would benefit from the scheme being considered as a single application through the Planning Act regime

4.2 A section 35 direction decision is completely separate from, and has no bearing on, the decision as to whether development consent should be granted. It only directs that a project is to be treated as development for which development consent is required.

Timetable for deciding requests

4.3 Under section 35A of the Planning Act, the Secretary of State must decide a qualifying request for a direction under section 35 within 28 calendar days of receiving it. Where the Secretary of State requests further information in relation to the request, that information must be provided within 14 days of the request for information being received. On receipt of the additional information, the Secretary of State has a further 28 days in which to decide the request.

4.4 Requestors should ensure that any request is complete and supported by sufficient information at the point of submission. Where requested information is not provided within the 14-day period, the Secretary of State may proceed to determine the request on the basis of the information already provided. If the information available is insufficient to justify giving a direction, the Secretary of State may decide not to give the direction.

5. Section 35B Directions (‘direct-out’ power)

5.1 Section 35B of the Planning Act provides for development that would otherwise require development consent to be considered through an alternative consenting regime where the Secretary of State is satisfied that the alternative regime is appropriate for the development. Relevant factors in this decision will include whether the alternative consenting regime is proportionate to the nature, scale, complexity and impacts of the project.

5.2 A section 35B direction is only relevant where the development would otherwise fall within the NSIP regime and require development consent under the Planning Act. The Secretary of State may only give a direction if no application for development consent under the Planning Act has been made (subject to a minor transitional provision for applications made during the period between Royal Assent of the PIA 2025 and the coming into force of section 35B). Directions may only be given where the development will (when completed) be wholly in England (or waters adjacent to England up to the seaward limits of the territorial sea), or in the case of development in the field of energy, in a Renewable Energy Zone (except any part of the Zone where the Scottish Ministers have functions). The Secretary of State must be satisfied that it is appropriate for an alternative consenting regime to apply in relation to the development, rather than the Planning Act.

5.3 When considering whether to request a section 35B direction, the requestor should explain why they consider it is appropriate for the proposed alternative consenting regime to apply, rather than the NSIP regime, and why this would provide a proportionate and effective route for considering the development. This section is intended to help requestors identify the information and evidence that may support a request. It does not determine how the Secretary of State will decide the request; the Secretary of State’s decision-making considerations are set out in section 7. Relevant matters may include:

• whether the scale and complexity of the development can be appropriately assessed on, and determined under, the proposed alternative regime
• whether the element that would otherwise require development consent forms part of, supports, or is closely connected to a wider project, and whether there would be a benefit in the relevant components being considered together through the same consenting route
• whether the proposed alternative regime, alongside any other permits, licences, or consents required for the development, would provide a sufficiently complete, coherent, and deliverable consenting route for all relevant elements of the project, including how any separate approvals would be coordinated that could otherwise be included in a DCO application, and whether this would avoid unnecessary duplication, delay or uncertainty
• whether the proposed alternative consenting regime would support the timely determination of a project related to a government priority, including where this would contribute to economic growth, infrastructure delivery, or another national objective
• whether the likely impacts and benefits of the development are principally local, regional or national in scale, including the geographical extent of any environmental, transport, traffic, landscape, heritage, community, or economic impacts
• whether those impacts can be appropriately assessed and mitigated through the proposed alternative regime

6. Section 35B Direction Requests

6.1 A direction can be requested by two types of requestors:

• a “qualifying person”, where the conditions in section 35B(5) of the Planning Act are met – a ‘qualifying person’ is a person who proposes to carry out any of the development, or intends to apply to an alternative consenting authority if a direction were given. Qualifying persons are typically developers or project promoters directly involved in the planning and delivery of the development
• a person with the power to make a Local Development Order, a Mayoral development order, or a simplified planning zone scheme where the conditions in section 35B(6) are met. These persons may include local planning authorities or Mayoral Development Corporations.

Requests from a Qualifying Person

Before submitting a request

6.2 Before submitting a request under section 35B(5)(a), a qualifying person should consider whether all the conditions in section 35B(5) can be met and should prepare the request accordingly. The request should clearly specify the development, identify the proposed alternative consenting regime, and explain why the requestor considers that it is appropriate for that alternative regime to apply in relation to the development (to include reasons why the planning process under the Planning Act is not considered to be as appropriate or proportionate for the specific development), by comparison. Further guidance on the expected content of a request is set out in section 6.6.

6.3 A qualifying person will need to provide evidence demonstrating that the alternative consenting authority is aware of the intention to submit a request for a section 35B direction for this condition to be satisfied. To support a timely and robust decision, this evidence should include, where possible, the alternative consenting authority’s written views on the proposed use of the alternative consenting regime for the development. This may include the authority’s view on whether the regime is available and fully operational to be able to consider the proposed development, any information the authority would expect to receive with a subsequent application, and any known issues relating to capacity, timing, environmental assessment and standards, consultation, compulsory acquisition, or coordination with other consents. Where the requestor is unable to provide evidence of the authority’s views, the request should explain what engagement has taken place and why those views are not available. The Secretary of State may request further information where the evidence provided is insufficient to determine whether it is appropriate for the alternative consenting regime to apply. The decision on whether to give a section 35B direction remains for the Secretary of State.

6.4 Early engagement with the alternative consenting authority is therefore strongly encouraged. This should help the requestor understand the authority’s expectations, identify any issues that may need to be addressed in the request, and reduce the likelihood of further information being required after submission.

6.5 The principles of cost recovery apply across many different consenting regimes. Requestors should be aware of the charging regimes and cost recovery arrangements that may apply to their development over its lifetime.

The content of the Section 35B request

6.6 In order to satisfy the conditions to enable the Secretary of State to give a direction, a request from a qualifying person must:

• be made in writing
• clearly specify the development to which the request relates. This is expected to include a detailed description of the project’s location, scope, purpose, and any relevant technical or logistical information including the NSIP threshold the development meets
• identify the appropriate alternative consenting regime for the development
• explain why the requestor considers that the proposed alternative consenting regime would provide an appropriate way of considering the development, having regard to the nature, scale, complexity and impacts of the project. This may include any reasons why the NSIP regime may not be as appropriate for the specific development, and any information relevant to whether the alternative regime would provide a proportionate and effective route
• include evidence that the alternative consenting authority is aware of the requestor’s intention to make the request and is expected to include, where available, the authority’s written views on the proposed use of the alternative consenting regime for the development, including any views on the availability and operability of that regime and the information likely to be required with any subsequent application. Where those views are not available, the request should explain what engagement has taken place and why they have not been provided

6.7 Further details on what the Secretary of State may consider in making their decision are outlined in section 7 and may also be relevant for the requestor in making their request.

Requests from a person with the power to make a Local Development Order, a Mayoral development order, or a simplified planning zone scheme

6.8 In order to satisfy the conditions to enable the Secretary of State to give a direction, a request under section 35B(6)(a) from a person who has the power to make a Local Development Order, Mayoral development order, or a simplified planning zone scheme must:

• be made in writing
• specify the development to which it relates. This is expected to include a detailed description of the project’s location, scope, purpose, and any relevant technical or logistical information including the NSIP threshold the development meets
• indicate that the person making the request considers that the appropriate alternative consenting regime for the development is that under section 61A (Local Development Orders), 61DA (Mayoral development orders) or 82 (simplified planning zone schemes) of the Town and Country Planning Act 1990 (as the case may be), giving reasons for that view

7. Section 35B Direction Decisions

7.1 The Secretary of State may give a direction under section 35B only if the statutory conditions are met. In deciding whether to give a direction, the Secretary of State will consider the request, any supporting evidence, and all other relevant matters. This will include whether the Secretary of State is satisfied that it is appropriate for an alternative consenting regime to apply in relation to the development, having regard to the circumstances of the case. Relevant matters may include:

• whether features of the development indicate that the NSIP regime may remain the more appropriate consenting route, including whether the development is likely to require multiple associated consents or authorisations, compulsory acquisition powers, deemed consents or other powers that may be available through a DCO, and whether the proposed alternative consenting regime would provide an appropriate, proportionate and effective route for authorising the development
• whether the proposed alternative consenting regime would provide appropriate arrangements for assessing environmental effects, applying relevant environmental requirements and standards, and suitable public engagement, publicity and notification, having regard to the nature, scale and impacts of the development
• whether the proposed alternative regime would provide an effective and proportionate decision-making route, having regard to any statutory time limits and expected procedural steps in the proposed alternative consenting route
• whether there is sufficient evidence that the proposed alternative consenting regime can operate effectively for the particular development. Any views from the alternative consenting authority on procedural readiness or case-specific delivery issues may provide relevant context, but will not be determinative of whether a direction should be given
• whether any element of the development that would otherwise require development consent is ancillary to the primary purpose of a wider development being determined through the proposed alternative regime

7.2 In cases where the direction is made on request under section 35B(6)(a), or by the Secretary of State under section 35B(4)(d) without a request (see section 8.7), the Secretary of State may request information from those promoting the development for the purposes of deciding whether to give the direction. This may include information about the nature and status of the development, the consenting route currently being pursued or proposed, any preparatory work already taken, and any reasons why the person promoting the development considers that a section 35B direction should or should not be given. Any views provided will be considered as part of the Secretary of State’s consideration, alongside all other relevant matters.

7.3 A direction given by the Secretary of State may include provision for a proposed application for a DCO to be treated as a proposed application to a specified alternative consenting authority. It may also provide for specified provisions of legislation governing the alternative consenting regime to have effect, or to be treated as having been complied with, in relation to the proposed application. For example, pre-application work undertaken before the direction is given may be treated as having complied with requirements under the alternative regime (with any specified modifications). This could mean that work undertaken by requestors in preparing to apply for a DCO under the Planning Act may be carried over to the alternative regime (with possible modifications), removing any possible duplication of work.

8. Format, reasons and publication of a section 35B direction

8.1 The Secretary of State will communicate their decision on the direction in writing. Where a direction is given, the direction will identify the development to which it relates and the alternative consenting regime that is to apply. The direction may also include any relevant provisions made under section 35C(3) of the Planning Act, including any relevant provisions about how procedural steps already taken are to be treated under the alternative consenting regime.

8.2 In accordance with section 35C(5) of the Planning Act, the Secretary of State must give reasons for the decision to give, or not to give, a section 35B direction. Those reasons will explain, in summary, the basis on which the statutory requirements and conditions have, or have not, been met.

8.3 Where a section 35B direction is given, it must be published under section 35C(6). Directions will be published on GOV.UK. The Secretary of State will also notify the requestor.

8.4 When making their decision on the section 35B request, the Secretary of State will do so in accordance with general public law principles of good decision-making and in adherence to the key planning propriety principles as set out in the Planning Propriety Guidance. Where the Secretary of State is considering giving a direction in relation to development which the Secretary of State proposes to carry out themselves, appropriate arrangements will be put in place to maintain propriety and support fair decision-making. This may include separation of responsibilities within the relevant department, clear records of the material considered, and handling the decision consistently with the  Planning Propriety Guidance and general public law principles, including fairness, impartiality, taking relevant considerations into account and giving reasons for the decision.

Decision timeframe

8.5 Under the Infrastructure Planning (Timetable for deciding request for direction) Regulations 2026, the Secretary of State, on receiving a qualifying request, must make a decision on the request within 35 calendar days. Where the Secretary of State requests more information from the requestor, the requestor must provide the additional information within 21 days of receiving the request. The information should be submitted in writing. On receipt of any additional information, or at the expiry of the period of 21 days, whichever is sooner, the Secretary of State has a further 35 days to make their decision.

8.6 Requestors should ensure that any request is complete and supported by sufficient evidence at the point of submission. Where the Secretary of State has requested additional information and that information is not provided within the 21-day period, an additional 35 days will apply from the expiry of the 21-day period. In such circumstances, the Secretary of State will determine the request on the basis of the information already provided in the original request. Where the Secretary of State has insufficient information to support the request, this may result in the direction not being given. If additional information is provided after the 21-day period (i.e. out of time) but before a decision has been made in practice, it will be within the discretion of the Secretary of State to decide whether to take that information into account, where appropriate and reasonable.

Section 35B directions without a request

8.7 Section 35B of the Planning Act also allows the Secretary of State to give a direction without a request in two circumstances. Firstly, where the Secretary of State proposes to carry out the development and considers that an alternative consenting regime is appropriate. Secondly, where the Secretary of State considers that a development order under section 59 of the Town and Country Planning Act 1990 is the appropriate alternative consenting regime. In either case, the Secretary of State may only give a direction where the statutory conditions in section 35B are met, including that the development would otherwise require development consent and that the Secretary of State is satisfied that it is appropriate for an alternative consenting regime to apply.

8.8 In the case of a development order made by the Secretary of State, such as a Special Development Order, a section 35B direction may therefore be considered without a request from a developer or other requestor. The direction would disapply the requirement for development consent only to the extent specified in the direction, with the development then proceeding, where authorised, under the terms of the relevant development order.

9. Alternative consenting regimes

9.1 For the purposes of section 35B, an “alternative consenting regime” means a regime set out in legislation other than the Planning Act under which, if development consent were not required for the development, a specified person would have power to authorise the development.

9.2 There are several alternative consenting regimes that may be considered an appropriate alternative to the NSIP regime for a specific development. Some of the differences are set out below to aid in the consideration of which consenting route may be most appropriate for a particular project. Please note that the information set out below is not intended to be exhaustive.

Town and Country Planning Act 1990 (TCPA)

9.3 The Town and Country Planning Act 1990 (the “TCPA”) allows for planning permission to be granted through an application for planning permission made to a local planning authority. In other cases, planning permission may be granted through an order-making route under the TCPA, including Local Development Orders made by local planning authorities under section 61A, and Mayoral development orders made by mayors of strategic authorities (once commenced) under section 61DA and development orders made by the Secretary of State under section 59. A person with the power to make a Local Development Order, Mayoral development order, or a simplified planning zone scheme may request a section 35B direction where the statutory conditions are met.  Although order making routes are expected to be used less frequently, they may provide a more appropriate way of authorising specified development under the TCPA in particular cases.

9.4 The TCPA route may be appropriate where the NSIP element is ancillary to a wider scheme, or where certain powers and secondary consents normally available through a DCO are not required.

9.5 Unlike a DCO, a TCPA route will not generally provide a single consent which brings together planning permission, compulsory acquisition powers and a broad range of other consents within a single decision. Planning permission granted under the TCPA will commonly need to be supplemented by any other consents, permits or licences required for the development, which must be obtained separately from the relevant bodies. Where compulsory acquisition powers are required, these would also need to be pursued through separate statutory procedures. The decision-making route, requirements on matters such as consultation and publicity, will also differ according to the route selected. The nature of certain development may limit the routes available, for example, Local Development Orders cannot be used to grant planning permission for Schedule 1 EIA development, and a Special Development Order cannot be made if an assessment under the Conservation of Habitats and Species Regulations 2017 (as amended) goes beyond Appropriate Assessment. The approach to subsequent decisions, such as considering conditions and obligations following the grant of planning permission, will also depend on the route selected. Requestors should therefore consider carefully whether the TCPA provides a sufficiently complete and proportionate framework for the particular development, including whether it is capable of accommodating the development’s land, environmental and delivery requirements.

Highways Act 1980

9.6 Orders under the Highways Act 1980 (the “HA80”) usually grant powers to relevant highway authorities for the construction or improvement of highways (road schemes). The Orders can provide the necessary legal powers to acquire land and rights compulsorily or to stop up, improve or create highways, following clear procedural requirements and tests. Other key differences to the NSIP regime include:

• HA80 requires a suite of separate Orders for the different aspects of the project, for example a Compulsory Purchase Order, Side Roads Order, Bridge or Tunnel scheme
• planning permission is not granted by the HA80 Order and is typically secured via the local authority under the TCPA, prior to application
• consents relating to listed buildings, heritage, or environmental factors will also need to be applied for separately, via the relevant bodies
• there is flexibility in the examination of objections to an application, where projects may not necessarily need a full public inquiry process

9.7 The following links contain relevant information:

• Highways Act inspectors’ reports and decision letters
• Guidance on the compulsory purchase process

Transport and Works Act 1992

9.8 For transport schemes, the Transport and Works Act 1992 (the “TWA”) can be used to grant powers for the construction and/or operation of guided transport systems such as railways and tramways and for works affecting rights of navigation. They can also relate to the construction or operation in an inland waterway, certain types of works that interfere with rights of navigation in waters up to the limits of the territorial sea including, for example, bridges, piers, barrages and tunnels.

9.9 In relation to a section 35B direction, TWA Orders can provide necessary powers for the construction, maintenance and operation of rail infrastructure, to acquire land and rights compulsorily, and to interfere with highways or rights of way, following a clear statutory process which is tailored to the operational and safety characteristics of the guided transport sector. TWA combines most consents required to deliver a scheme within a single Order. Key differences to the NSIP regime include:

• planning permission is not automatically granted by the TWA Order itself and the applicant must specifically request that the Secretary of State “deem” planning permission under section 90 of the TCPA, within their application
• some consents (such as certain environmental permits) will need to be sought separately, via the relevant bodies
• there is flexibility as to how objections to an application are managed as these can be considered via a public inquiry, hearing and written representations.

9.10 See guidance: Transport and Works Act orders: a brief guide

Harbours Act 1964

9.11 Orders under the Harbours Act 1964 (the “HA 1964”) usually grant powers for the development of ports and harbours in England; with the thresholds for default classification as NSIP instead expressed as annual estimated capacities for container, roll-on/roll-off or other (typically bulk) traffic. The Orders can provide necessary legal powers for amending existing harbour powers or duties, establishing new harbour authorities, and authorising defined operational/physical changes, following clear procedural requirements that reflect the distinct nature of ports and harbours rather than broader planning regulations. The main alternative consenting routes under HA 1964 are a Harbour Revision Order or a Harbour Empowerment Order, in addition to the need for a marine licence (which can in England be deemed integrally as part of a DCO but would still require the involvement of the Marine Management Organisation (MMO)). Although the responsibility for processing applications has now been delegated to the MMO in England, the Department for Transport is still the ports policy lead for England and Milford Haven Reserved Trust Port, advising the MMO on ports policy and arranging for Harbour Orders to be laid before Parliament. Key differences to the NSIP regime include:

• depending on the nature of the project, some planning approvals and other environmental consents may still need to be sought separately, via the relevant bodies
• for certain projects, HA 1964 can avoid the need for multiple consents and provide a more streamlined application process
• there are no statutory timescales for the approval of a Harbour Order. Current timescales for approval are in excess of 4 years

9.12 It is worth noting that Port and Harbour developments are very disparate, and various other ancillary orders, consents, permits and/or licences may additionally be required for the main or associated or ancillary development. It is therefore important to seek independent legal advice and speak to the MMO at the earliest opportunity to discuss the viability of the project under an alternative regime.

9.13 The following link contains useful information: Harbour Orders

Electricity Act 1989

9.14 Section 36 of the Electricity Act 1989 previously enabled the Secretary of State to determine applications for consent for onshore generating stations over 50 megawatts. Following changes introduced by the Planning Act, this consent route no longer applies to onshore generating stations in England and Wales because they will either be consented through the Planning Act or the TCPA. A consequential amendment made by the PIA 2025 ensures that the section 35B direction-making power cannot be used to redirect onshore electricity generation projects back into the Electricity Act regime, which is no longer operational for such development. In the case of offshore wind and other offshore electricity projects, requestors should consider carefully whether different components of the project would be authorised under different regimes. In particular, some types of marine works may be capable of proceeding under the marine licensing regime, while any onshore infrastructure, landfall works, or transmission elements may continue to require separate authorisation under another consenting regime.

Marine and Coastal Access Act 2009

9.15 The Marine and Coastal Access Act 2009 (MCAA)The MCAA could provide an appropriate alternative consenting route for certain marine development where a section 35B direction has been given and the development is more appropriately considered through the marine licensing regime. This may be relevant where the principal works are marine in character and the project does not require the broader package of powers, compulsory acquisition provisions or disapplications that may be secured through a DCO. It could be the case where the section 35B direction relates only to the marine components of a wider project, such that the generating station or other marine works can be authorised through a marine licence, while any onshore infrastructure, landfall works, or transmission elements continue to require separate authorisation under another consenting regime. In such cases, a marine licence granted by the MMO may provide a more proportionate consenting route for the offshore works, although the suitability of that route will depend on the particular characteristics of the project and the extent to which other consents are also required.

9.16 A marine licence under the MCAA 2009 authorises marine activities. It does not generally provide a single consent equivalent to a DCO, which can combine development consent with a wider range of associated consents, powers and disapplications. A project proceeding under the marine licencing regime may therefore also require other consents, approvals or permissions depending on the nature and location of the development. For example, onshore works or transmission infrastructure may require planning permission under the TCPA, and certain activities may require environmental permits or other regulatory approvals. Requestors should therefore explain whether the marine licensing regime would provide a sufficiently complete, timely and proportionate consenting route for the development, taking into account any environmental assessment requirements and the need to coordinate with other regulatory regimes.

Section 35B Requests for Energy Projects

9.17 For applications relating to energy infrastructure projects covered under the heading ‘Energy’ within Part 3 of the Planning Act (as amended), the following additional factors apply to the Secretary of State’s consideration of requests for a section 35B direction. This should be read alongside the overarching guidance set out above.

9.18 In considering any application for section 35B direction, the Secretary of State will have regard to the government’s energy security and clean energy objectives, the Clean Power 2030 Action Plan published in December 2024, and the government’s target to cut Green House Gas emissions to Net Zero by 2050 including Carbon Budgets and Nationally Determined Contribution.

9.19 Applications for a section 35B direction are expected to clearly demonstrate the proposed development’s contribution to Clean Power 2030 and Net Zero targets.

9.20 When considering applications for a section 35B direction the Secretary of State will consider (in addition to the points set out in the overarching guidance above):

• the proposed development’s generating capacity, including how close it is to the existing NSIP threshold for that technology at the time when the application for the section 35B direction is made
• whether the proposed development includes a fossil fuels component

9.21 Specific to energy projects, in considering whether a section 35B direction is appropriate, the Secretary of State for Energy, Security and Net Zero may have regard to whether the direction would result in outcomes that do not align with wider government energy and clean power objectives.

9.22 Unabated fossil fuel projects – such as non-low carbon electricity generation (including unabated gas-fired generating stations), pipelines, and fuel storage – will not be considered appropriate for a section 35B direction except in exceptional circumstances. It is presumed as a starting point that such projects will be more suitable for consideration under the NSIP regime in accordance with the relevant energy NPS. The NSIP regime provides a clear and comprehensive framework for considering the wider impacts of such projects under the NPS, including requirements to carry out a whole life greenhouse gas assessment of the proposed development, and to provide an explanation of the steps that have been taken to drive down the climate change impacts at each stage of the life cycle of the development. In light of the nature of the impacts of such infrastructure, the appropriateness case for directing these projects out of the NSIP regime is unlikely to be demonstrated and it is expected that they will, where they meet the NSIP threshold, be decided under the NSIP regime.

Published 3 July 2026