The National Priority Infrastructure Bill
Looking for Growth's Newest Project To Let Us Actually Build Things
This morning, the Looking for Growth team released the full text for their first major campaign project: a national priority infrastructure bill.
British infrastructure planning suffers from three connected problems:
Multiple overlapping consent regimes producing too many veto points
Onerous, unpredictable, and individualised requirements
No mechanisms for meaningful value capture
The goal of the bill is to hit all three issues in one go by introducing a new consent type for infrastructure deemed a national priority.
The bill is systematic, so it will be difficult to see what it means for any specific project until it is put into practice. But it is an important step forward in several directions at once, and has some interesting characteristics.
The bill’s main mechanism is a new “priority consent” process for “national priority infrastructure”, defined as data centres, nuclear power stations and overhead electricity lines. This list can be amended later by the government, without primary legislation.
Priority consent offers planning permission for a given project, and bypasses any of the standard environmental review and extra consultation checks that usually come with larger infrastructure projects. This displaces existing consents like planning permission under the Town and Country Planning Act 1990, development consents under the 2008 PlanningAct, listed building consent, etc.
As with the existing NSIP regime, developers make just one application to the Secretary of State (SoS) for permission. Unlike the existing NSIP regime, the Secretary of State makes the decision unilaterally, bypassing the Planning Inspectorate, statutory consultees, local authorities, and any of the other parties and stakeholders that are given formal or informal veto powers.
Such a decision making process should operate under a presumption in favour of approval:
[exceptional circumstances] must be construed from the starting presumption that any adverse impacts are outweighed by the urgent need for national priority infrastructure and the clear, substantial and exceptional benefits arising from national priority infrastructure.
This gives ministers a straightforward mechanism to bypass existing planning arrangements, as well as the motive to use it.
The bill also imposes tighter statutory deadlines for decisions, with no simple way to extend the deadline. This means that the worst case scenario is 376 days to a rejection:
28 days for the SoS to confirm the application is “relevant”;
42 days for public representations;
42 days for the SoS to decide if further information is needed;
Up to 180 days for the SoS to make a decision;
If minded to refuse, a further “interim decision” adds another 42 days for the developer to respond plus 42 more days for the SoS to confirm.
Note that a worst-case scenario of 376 days – just over 12 months – is much better than the current average of 44 months.
These sorts of improvements are table stakes for anybody wanting to get more infrastructure built: faster permissioning with fewer veto players means more approvals. But approvals don’t mean completed projects, and the more pernicious damage is done by the uncertainty and delays, not just the overall approval rate. Long timelines and high levels of uncertainty around project scope are the real investment killers.
To that end, then, the bill introduces a mechanism for standardised environmental and transport contributions.
Projects that have environmental impacts, or impacts on local transportation networks, will pay 110% of a priorly assessed impact amount into a pot for the SoS to disburse as she sees fit. Rather than adding specific, case-by-case requirements grafted onto the project itself – like £100m bat tunnels added to train lines – Natural England will get the cash to spend more effectively.
This replaces the current mechanism of Environmental Impact Assessments, a thoroughly unhelpful system that leads to spiralling for developers costs, masses of documentation, and poor environmental outcomes. It looks a bit like the French system of Déclarations d’utilité publique, which grant approval for public works subject to a standard set compensation mechanisms. It’s powerful, because it replaces individual, case-by-case negotiations (like, eg, our existing Section 106 planning obligations) with cash amounts that are known ahead of time, based on a predictable rubric.
It’s easy to underestimate the significance of this, but the current British system is profoundly, deeply, discretionary – there are, for the most part, no real rules that aren’t subject to the interpretations and preferences of individual planners. This means that every project gets adjusted and such adjustments are not knowable at the beginning of the project.
It should also help improve environmental outcomes, not only because it should result in the allocation of more capital, but because it gives Natural England, and other such bodies, the power and budget to use their expertise to actually do the things they would otherwise impose duties on others to do, breaking the back of perhaps the worst British policy anti-pattern: legislating in terms of obligations for others rather than powers for ourselves.
These structural demands for baroque sets of requirements are underwritten by the omnipresent threat of judicial review. So the bill also raises the bar for such reviews, limiting the grounds for challenge and curtailing repeated attempts to block or delay key projects. I won’t talk much about this, because I can’t model what it will mean in practice very well, but I worry that existing case law will swallow it up: broaden the scope of ‘interests which are substantially and seriously prejudiced’, ‘aggrieved by the making of a priority consent order’, and ‘exceeded the powers’; that these protections against judicial review will arrive stillborn on the statute book. The higher bar for reviews mostly revolves around restricting cost protection for serial challengers – helpful on the margin, sure, but not obviously solving the core problem. Still, this might be a fight for another day.
Finally, it requires developers to provide a payment “to a person or persons in a prescribed proximity to the development by reference to its type and scale of development”, giving local communities a reason to support new development.
These are marketed as “patriot payments”, which is perhaps a little too cute for me, but it’s a nice idea. It doesn’t solve the value capture problem entirely, since it doesn’t give local authorities any access to revenues, just the people living nearby. But it legitimises Coasean bargaining, as well as, hopefully, makes supporting new infrastructure higher status.
It seems like a smart bill. Unilateral decision making from a starting presumption that “adverse impacts are outweighed by the urgent need for national priority infrastructure” should get more things approved more quickly. Tight deadlines with no extensions should provide more certainty for developers, and standardised conditions and compensation for environmental and transport compensation should provide more certainty for local authorities and communities. Payments to individuals living nearby creates an incentive, one right now lacking, to support new projects.
But it remains to be seen whether an expansion to the formal powers of politicians – powers which they broadly have already – will give enough political cover to actually use them. Ministers have the means and motive already, but lack the opportunity. Will this bill help solve for the politics, for the stubborn persistence and endogeneity of NIMBYism? I hope so.