The Planning and Infrastructure Act 2025 (“the Act”) was enacted on 18 December 2025. It includes several provisions relating to Nationally Significant Infrastructure Projects (NSIPs) that are consented via the Development Consent Order (DCO) route. Most of the NSIP related sections will require commencement regulations in order to come into effect. This includes the proposed changes to DCO application procedures, which are the focus of this blog.
Changes to pre-consultation requirements
An April 2025 Government press release said that “Burdensome statutory consultation requirements unique to major infrastructure projects will be scrapped” with the effect of “cutting down the average two-year statutory pre-consultation period by half”. The press release included examples of schemes that had been at pre-consultation stage for between 2 and 3 years. As our colleague, Ian York, noted in his blog ‘Fixing the pinch points’, while examinations and decisions have largely kept to their statutory timescales, it is the front end that continues to stretch.
For large NSIP schemes, there are typically multiple stages of pre-application consultation, each one triggered by a change to a scheme detail (not always significant) that necessitates re-engagement with all interested parties. This ‘cycle of consultation’, as a scheme evolves, does not always improve engagement or outcomes. The typical two year statutory pre-consultation period alluded to by the Government is often a product of this repeating process. The Act allows for the stripping out of significant parts of this statutory pre-application consultation process.
Once section 5 of the Act comes fully into force, six sections of the Planning Act 2008 (PA 2008) relating to pre-consultation requirements will be omitted, with consequential amendments to other sections relating to pre-consultation.
The sections of the PA 2008 to be omitted are:
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section 42 (duty to consult);
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section 43 (local authorities for purposes of section 42(1)(b));
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section 44 (categories for purposes of section 42(1)(d));
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section 45 (timetable for consultation under section 42);
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section 47 (duty to consult local community); and
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section 49 (duty to take account of responses to consultation and publicity).
Effects of these omissions would include removing the requirement to consult various parties prior to an application being submitted to the Secretary of State and requirement to consult on preliminary environmental information.
The Secretary of State would have to issue guidance setting out the best practice for pre-application steps (see below), which is likely to include the alternative to the current consultation report. The applicant’s duty to publicise would be shortened, requiring the application to be publicised in the required manner, complying with guidance issued by the Secretary of State.
The changes to the pre-consultation requirements, which would not have to be demonstrated at an application’s acceptance stage will “enable the Planning Inspectorate to require corrective action on an application ahead of examination (rather than requiring the Planning Inspectorate to ask the applicant to withdraw or reject an application)”.
While there is now provision for the statutory requirements to be removed, the emphasis has shifted to guidance, which must be complied with (see below).
The proposed removal/amendment of the sections of the PA 2008 that ease the administrative burden on applications during pre-application period is to be welcomed. As Ian York said in his blog:
“Rather than keeping rigid statutory duties, the government wants to shift the emphasis onto outcomes: that applicants engage meaningfully, that this feeds into stronger applications, and that PINS can judge at Acceptance whether a scheme is genuinely ready to proceed. Done well, this could replace process-driven consultation with a more flexible system that rewards quality and readiness”.
The Government recognises this; when it announced the amendments to the then Bill, to secure the removal of the pre-application requirements, it summed up the current position and why change is needed:
“[…] there is considerable evidence to attest to the fact that these statutory requirements are driving perverse outcomes. Rather than providing a means by which engagement drives better outcomes, statutory pre-application procedures have become a tick-box exercise that encourages risk aversion and gold-plating. The result is consultation fatigue and confusion for communities; longer, more technical and less accessible documentation; and an arrangement that actively disincentivises improvements to applications – even if these are in a local communities’ interest – because applicants worry this will require a further repeat consultation.
The government has concluded that these statutory requirements, absent from other planning regimes, including those used to determine applications for new housing, now serve to slow down projects and deter improvements to them – wholly contrary to their nominal purpose of producing better outcomes”.
The Government has indicated that this is the start of improving the DCO process, rather than the end “We will continue working with the sector to fix the underlying consenting processes so that the system is fit for the demands of the future”. (Clauses 5 and 6).
Acceptance stage changes
The legislation relating to the acceptance stage is to be amended to reflect the removal of certain pre-application consultation requirements.
Section 55 of the PA 2008 currently requires the Secretary of State to consider the consultation report, the adequacy of consultation representation received by the Secretary of State from a local authority consultee and whether the applicant has had regard to guidance (issued under section 50).
If the changes to s55 come into force, when considering whether to accept the application, the SoS would take into account compliance with specified parts of the PA 2008:
Guidance
The intended changes to the pre-consultation stage look to rely on what would be guidance, rather than legislation.
Currently, section 50 of the PA 2008 says that guidance may be issued by the Secretary of State about how to comply with the requirements of the pre-consultation chapter of that Act and that applicants must have regard to it.
The Act provides that:
“1. Applicants must have regard to any guidance issued by the Secretary of State to assist them in complying with section 48 [of the PA 2008].
2. The Secretary of State must issue guidance to assist applicants, setting out what the Secretary of State considers to be best practice in terms of the steps they might take in relation to a proposed application in readiness for submitting an actual application”.
Accordingly, the forthcoming guidance must be very clear and seek to remove ambiguity, particularly when parties are seeking to establish whether or not pre-application engagement has been sufficient Failure to provide this level of guidance may well see applicants reverting to type, following previous practices, and thus watering down any benefits for programme offered by this change.
The Act also includes provision to amend the Planning Act 2008 so that authorities preparing a local impact report (other than in Scotland) and certain public authorities making representation to also follow any guidance issued by the SoS. (Clause 8). This change recognises the importance of consulting with public bodies, but that their inputs must also follow best practice and avoid changing positions.
In its April 2025 ‘Further reforms to the Nationally Significant Infrastructure Projects regime’ Written Ministerial Statement (WMS) the Government said the new guidance would:
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set strong expectations of pre-submission consultation
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encourage best practice without repeating the flaws of the current system
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emphasise benefits of consultation to developing high-quality schemes
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note the importance of developers taking a proportionate approach to avoid repeated consultations
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encourage pre-application services provided by the Planning Inspectorate, statutory consultees and local authorities – albeit these “will be reshaped to reflect a renewed focus on the quality of applications and their readiness for examination rather than meeting a statutory test”
The WMS concluded:
“The Planning Inspectorate, on behalf of the Secretary of State, will continue to assess whether applications are suitable to proceed to examination. We expect guidance to emphasise that without adequate engagement and consultation, applications are unlikely to be able to proceed to examination. Both guidance and advice from the Planning Inspectorate will be aimed at helping applications demonstrate that they are of a satisfactory standard”.
The WMS also said it would work with stakeholders to design the guidance.
The ‘Consultation on streamlining infrastructure planning’, which ran from 1 September 2025 to 27 October 2025, asked broad questions about the nature of the proposed guidance and the matters it should seek to address; it is not a full suite of guidance published for comment.
It sought views on:
“4 areas that guidance could cover:
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factors for applicants to consider at pre-application
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the benefits of non-statutory consultation and engagement
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the role of different statutory bodies and stakeholders at pre-application
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the documents which can support pre-application”
Ian York’s blog “Fixing the pinch points” provides an overview of the consultation, and how the proposals relate to other proposed changes to the infrastructure consenting system. Among his concerns are that without clear guidance, there will be a risk of inconsistency in how the quality of engagement is judged at the Acceptance stage.
The Local Government Association said in response to the consultation “any new guidance produced by the Secretary of State must be co-designed with local government so that it most accurately reflects their needs/requirements from applicants in order to fulfil their own obligations as part of the NSIP process through the preparation of Local Impact Reports”.
This suggests that both the public and private sector have asked for clarity in the new guidance.
Amendments
The Act includes provisions intended to make amending DCOs, i.e. post-consent changes, more straightforward. This includes amendments to create a single process to deal with proposed changes, with the non-material amendment process to be deleted. (Clause 12).
DCO opt-out
The Act includes the opportunity for the Secretary of State, or an applicant to make the case for a proposal that falls within the DCO regime to instead be determined by another route – i.e. by submitting a planning application in most cases. The intention of this is to provide alternatives and flexibility and to create capacity in the DCO system for the projects “that need to use it”. This is particularly welcomed for those schemes that perhaps find themselves inadvertently caught by the DCO regime (for example data centre schemes with power thresholds above 50MW), or scenarios where there is strong support from the host local authority, where the benefits of the DCO consenting approach are not so clear cut (Clause 4).
Seeking focused examinations
A requirement to consider the Initial Assessment of the Principal Issues, as well as the discussion at the preliminary meeting, which is already required to be considered. The Government intends this additional requirement to focus examinations on critical issues. The ambition for focused examinations appears to revert back to the original thinking behind the PA 2008 - and it should help with the campaign to attract more schemes (which have a choice) into the DCO system. Preliminary meetings already aim to identify key issues, hence it is unclear how this change will have effect. However, having a public airing of key topics should help to ensure all participants are engaging early, arriving at the examination with an informed position, and are well advised through proportionate consultation.
Other NSIP changes provided by the Act
Other changes provided for, but not yet in force include:
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National policy statements (NPSs) would need to be updated every five years and the process for approving them would be simplified, in response to the National Infrastructure Commission’s recommendations
. The process for making certain amendments, including in response to new Government policy, is further simplified (Clause 1 and 2)
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A provision removing the requirement to obtain written authorisation from the Secretary of State to access land, if a private agreement with the landowner cannot be reached. Instead there would be 14 day notice period, with additional measures available for gaining access, if needed. (Clause 11)
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Removing the paper permission stage for NPSs and DCOs and removing the right to appeal for cases
deemed totally without merit at the permission oral hearing. A Written Ministerial Statement made on 23 January 2025 sets out the proposed changes and the reasoning behind them
. The Statement also says that the Government will “introduce non-mandatory case management conferences to NSIP judicial reviews; formally designate NSIP judicial reviews as significant planning court claims; and work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court” (Clause 13)
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A measure to “put beyond doubt” that
“an Examining Authority can make an order for costs at any time after they have been appointed, including where an application is withdrawn before commencement of the statutory six month period for examining the application”.
The Government says that this is intended to “remove the disincentive for statutory consultees, local authorities or those affected by compulsory acquisition to proactively engage in the DCO process between acceptance and preliminary meeting”. This measure will come into force two months after enactment, i.e. 18 February 2026 . (Clause 10)
Beyond the Act: Data centre NSIP opt-in and a legislation time lag
It is more than a year since the Government first intimated that data centres, gigafactories and laboratories would be types of business or commercial development capable (on request) of being directed into the Nationally Significant Infrastructure Projects consenting regime, following consultation, and almost 18 months since it was formally proposed. The draft regulations adding data centres to the list of business or commercial projects have been approved by Parliament and the Government says they will shortly become law. This time lag shows that even with a new Government’s enthusiasm changes will take some time. The point being that the provisions in the Act need to be brought into force swiftly and the necessary regulations and guidance produced, if the urgency acknowledged by the Government is to be addressed.
Furthermore, the draft NPS on data centres, due to be consulted on shortly, must also emerge in its final form swiftly.
Confirmation that data centres can follow this route is good, but also with the changes to allow the opt-out of certain projects from the DCO process referenced above, large-scale data centres (noting that many have energy generating characteristics above the thresholds in the 2008 Act), will now have the choice to select a consenting process best-suited to their needs.
The Government’s consultation on ‘Proposed reforms to the National Planning Policy Framework and other changes to the planning system’ says:
“We want developers to have maximum flexibility to choose the most efficient and effective planning routes for their projects to accelerate the build-out of AI data centres, a key foundation to realising AI’s potential for economic growth and public sector transformation”.
In this vein, the Government asks:
“[…] whether the ability to enter or leave the NSIP regime and ensure data centres and co-located energy generation projects can be consented under one regime outlined above provides sufficient flexibility or whether more needs to be done. If more needs to be done, we want to understand whether increasing the Planning Act 2008 threshold for renewable energy generation projects co-located with a data centre would help speed up the consenting process for data centres and their supporting infrastructure”.
Mandatory Biodiversity Net Gain also on the horizon
In May 2025, the Government consulted on ‘Biodiversity net gain for nationally significant infrastructure projects’. The consultation said that the Government’s intention is for NSIP applications made after the requirement comes into force will need to meet the BNG requirement, noting that some proposals are already seeking to deliver BNG.
The full consultation response will be issued ahead of BNG for NSIPs going live in May 2026.
Water related projects
The section 3 provisions relating to water related projects are in force. These essentially allow third party providers, appointed by water undertakers, to apply for development consent orders for water projects (Clause 3).
Conclusion
The measures set out in the Bill could make the NSIP process significantly quicker. Currently NSIPs are subject to inherently inflexible legislation and the proposed changes to the consultation and amendment provisions are welcomed.
If effective, the changes intended by the Act could make a meaningful improvement to the currently unwieldly statutory pre-consultation period. However, any savings in programme will be reliant upon the availability of clear guidance, setting out unequivocally what constitutes proportionate consultation. If drafted effectively it would be possible to cut the statutory pre application consultation period, and the Government’s ambitions for this to be cut in half are considered realistic. Furthermore, the proposed streamlining of applications for changes to DCOs will improve post consent efficiencies and potentially allow schemes to be delivered more swiftly.
