Planning matters

The Infrastructure (Wales) Act (IWA) received Royal Assent on 3 June 2024 with parts of the act coming into force on 4 June 2024.

The Act aims to reform how infrastructure in Wales (and the Welsh marine area) is consented with the intention of streamlining and modernising the process. It will establish a unified infrastructure consenting process called an Infrastructure Consent, for specified types of major infrastructure called Significant Infrastructure Projects (SIPs).

The infrastructure that can be consented include, inter alia, energy projects (other than a wind generating station) with a generating capacity of between 50 and 350 megawatts, wind generating stations of more than 50 megawatts (with no maximum), new railways that measure more than 2km in length and interestingly (in the context of Wales’ net zero ambitions) hydraulic fracturing for oil and gas and coal gasification as well as new open cast coal mining. The Act also includes (at section 17) the ability for ministers to add, vary or remove projects as long as the projects are in the fields of energy, flood prevention, minerals, transport, water, wastewater and waste.

Whilst the primary legislation is now in place, significant subordinate legislation is required in order for applicants to be able to apply for an Infrastructure Consent. The IWA is the starting framework.

To kick-start the secondary regulations process, the Cabinet Secretary has published two consultation papers as follows:

Responses are required by 22 July 2024.

We understand that the remaining consultations will follow in the next few months with the drafts of the subordinate legislation to be published towards the end of 2024 / early 2025. With a fair wind, the first applications for Infrastructure Consent can be made at some point in 2025.

Infrastructure Consent will replace a number of existing statutory regimes for the consenting of SIPs and will rationalise the number of authorisations required to construct and operate a SIP into a single consent akin to the DCO process. The aim is to create a ‘one-stop shop’ which the Welsh Government hopes will create a more transparent and consistent process for the public and developers. This is one of the major drawbacks of the current Development of National Significance (DNS) process. Once brought into effect, and following the relevant transitionary periods the Infrastructure Consent will replace the current DNS process.

The Infrastructure Consent process will hopefully make the process of delivering critical infrastructure simpler and potentially quicker. However, there are still some issues that we can foresee with the new process:

1. The Act does not cover projects in the newly arising sectors such as hydrogen. This potentially leaves these national or sub national type of projects in an awkward position where they need to be considered under the TCPA process by each local authority that the project sits in. This introduces uncertainty and complexity and could deter investment as the TCPA process isn’t geared to deal with these large/complex projects.
   
   
2. There is a provision at section 17 to introduce new types of projects but these are limited to the following specific fields (energy, flood prevention, minerals, transport, water, waste water and waste). This could mean that important and emerging sectors are ruled out from being able to obtain Infrastructure Consent in the future. It is unclear how much time it will take to add new projects under section 17.
   
   
3. Applications for National Significant Infrastructure Projects (NSIPs) in England are determined in line with National Policy Statements. Para 56 of the Infrastructure Wales Act states that in deciding applications that the determining authority will have regard to ‘infrastructure policy statements’, National Development Framework (i.e. Future Wales) and any marine plan. At present Wales doesn’t have any Infrastructure Policy Statements and it is unclear when these will be prepared as well as how they interact with the NDF. In our view they are critically important to give greater certainty to investors about the form of development that is likely to be acceptable.
   
   
4. Inevitably, some projects in Wales will still be considered under the DCO route that is managed by PINS. This includes cross country projects (such as pipelines) that cross Wales and England as well as energy stations (excluding wind) of more than 350MW.
   
   
5. A significant amount of detail is reserved for secondary legislation. However, it could be argued that this has allowed the Act to be progressed at pace and that it provides greater flexibility down the line.
   
   
6. The consenting process will still be quite lengthy as section 59 notes that examining authorities must make a decision within 52 weeks (or frustratingly any other period as may be agreed between the applicant and Welsh Ministers).
   
   
   

It’s certainly an exciting time for infrastructure consenting in Wales with a replacement to the ineffective DNS process soon to become a reality. Whilst we have noted some drawbacks, the IC process will be an improvement on the current consenting process as it can secure associated consents (section 20) as part of the IC as well as cover compulsory purchase matters (section 66). We will have to see whether the new consenting process accelerates delivery as per the intention.

Welsh Government are keen to make it easier for large scale infrastructure to be approved and for sustainable investment to be attracted. The intention being that this will assist in helping Wales to reach its ambitious net zero targets and to be a resilient, prosperous and globally responsible Wales as per the Wellbeing of Future Generation’s Act. Whilst the act is a positive step forward it will be equally important to ensure that there is clear and unambiguous policy guidance to provide certainty to investors, the public and decision makers – the infrastructure policy statements could do this.

We look forward to reviewing further developments in relation to the act throughout the next 12 months prior to the new Infrastructure Consent process coming into force.