The Government has today published the updated suite of Nationally Significant Infrastructure Project (“NSIP”) planning guidance, including the keenly awaited guidance on pre-application consultation and the ‘acceptance test’: https://www.gov.uk/government/collections/national-infrastructure-planning-guidance-portal (make sure you scroll down to the section headed: “National Infrastructure Planning Guidance from 24 July 2026”).
It’s really good.
Contrary to the expectations of sceptics, it frees up developers to use the pre-application phase pretty much as they see fit.
Developers now only have themselves to blame if they continue to do things as they did before (producing SoCCs, PEIRs and consultation reports and multiple rounds of consultation), resulting in long pre-application periods driven by consultation alone.
The Government really has stuck to its promise of changing legislation and guidance to “make it quicker and easier to deliver critical infrastructure projects including through streamlining NSIP consultation requirements” (March 2026 policy paper).
Well done to Planning Minister, Matthew Pennycook, and the MHCLG team! It takes courage to roll back bureaucracy, and when it comes down to it few can bring themselves to do it. I believe these changes will be some of the most impactful for delivery of UK infrastructure made by this Government.
Developers who embrace them will take months, if not years, off their programmes.
We’ve identified in the table below some of the key problems previously faced by developers, and how the ‘Part 1: Pre-application steps’ guidance (“Pre-Application Guidance”) and ‘Guidance on the acceptance stage of an application’ (“Acceptance Test Guidance”) provide solutions.
Many people had predicted that this guidance would end up simply replicating the old Planning Act 2008 legal duties to consult (which were removed by the Planning and Infrastructure Act 2025). Fortunately, it has avoided this, primarily through two things:
- No ‘legitimate expectation’ created
The Pre-Application Guidance explains the benefits of ‘engaging’ and ‘consulting’ (both defined). It gives suggestions on best practice. But crucially, in legal terms it does not set up a ‘legitimate expectation’ that engagement or consultation must happen, or how it should be carried out. It states upfront that: “There is no statutory requirement for applicants to engage or consult during the pre-application stage, and nothing in this guidance should be read as creating such a requirement.”
Hard to see how this could be clearer. This provision should avoid successful judicial reviews based on inadequate consultation.
- The Planning Inspectorate (“PINS”) cannot refuse to accept an application based on consultation (or lack of it)
The Acceptance Test Guidance states clearly that: “The degree to which the applicant has chosen to carry out pre-application engagement and consultation, and the applicant’s approach to this, is not a statutory consideration in determining whether an application should be accepted…”. This, combined with the fact that no duty to consult has been created by the Pre-Application Guidance, should allay developer fears that PINS will reject applications based on consultation or lack of it.
The new guidance should be warmly welcomed by those involved in promoting NSIPs and used as real opportunity to change the NSIP process for the better.
HSF Kramer Webinar
We will be hosting a webinar on Monday 3 August at 11am to discuss the implications of the guidance. If you would like to register to attend that webinar, please contact Charlotte Dyer, Ian Mack or Catherine Howard.
Second opinion
We are keen to speak directly to any developers who find they are being advised by their professional teams to do things more or less as they would have done before. Having been one of the main instigators of this change via our Nutcrackers, we are passionate about the UK taking advantage of it. If you’d like a second opinion on your pre-application strategy please get in touch. I’m happy to have a quick chat: Catherine Howard.
The Problem | The Solution | Extract from Guidance (our emphasis in bold) |
|---|---|---|
Pre-Application Consultation | ||
Pre-application duration: The pre-application stage lasted on average more than two years (and steadily increased over the years), largely due to statutory pre-application consultation duties. | Statutory pre-application consultation duties have been repealed and it is for developers to decide what engagement or consultation (if any) they want to carry out. The guidance recognises the value of consultation and sets out how consultation could be carried out but does not require it. This should result in the pre-application stage reducing significantly in most cases. | “There is no statutory requirement for applicants to engage or consult during the pre-application stage, and nothing in this guidance should be read as creating such a requirement” (para 1.2, Pre-Application Guidance) “…government expects the time spent at pre-application to reduce across projects, reflecting the benefits of process efficiencies, the impact of streamlining reforms made by the PIA 2025, and growing experience across sectors” (para 7.2, Pre-Application Guidance) |
Re-consultation: Multiple-stage consultations were commonplace, with developers usually adopting a cautious approach to re-consultation “just in case”. Even small order limit changes necessitated further consultation. | The revocation of the duties gives developers flexibility to decide whether it would be helpful to carry out further (or indeed any) consultation. | “It is for applicants to judge how best to approach any pre-application engagement and/or consultation… Applicants may wish to consider undertaking bespoke, targeted engagement and consultation with those most affected by significant amendments to proposals, but this is entirely at their own discretion and there is no statutory requirement to do so.” (paras 4.13 and 4.14, Pre-Application Guidance) |
Consultation length: A minimum 28 days was required for each round of consultation, even when consulting a consultee who had been consulted many times before. | There is no fixed period for consultation and the developer can decide what is appropriate, taking into account for example the specific nature of the proposals, who is being consulted and previous engagement or consultation. | “Applicants may wish to set timeframes and response deadlines that are appropriate to the matter under consideration” (para 3.11, Pre-Application Guidance) |
Prescribed bodies: A set list of prescribed bodies had to be consulted (even if they did not want to be) and if any were missed off then this was an acceptance risk. | It is for developers to decide who to consult (if at all). The prescribed persons list is a good starting point when deciding who it might be appropriate to consult but there is no acceptance risk if all persons on that list are not consulted. | “Applicants are encouraged to use the list of prescribed persons for the purposes of section 56(2) of the Planning Act, set out in Schedule 1 of the APFP Regulations as a checklist of who they may want to engage and/or consult with during the pre-application stage. This can be further refined to take into account any bespoke and/or location specific aspects of the proposed development” (para 6.2, Pre-Application Guidance) |
Landowners: Land referencing exercises to identify Category 1, 2 and 3 ‘persons with an interest in land’ were time consuming and laborious. The need to consult with all such persons before submitting the application often caused delays. | There is no statutory duty to identify or consult persons with an interest in land at the pre-application stage. They do have to be notified however once the application has been accepted. Where compulsory acquisition/temporary possession is sought, applicants are encouraged – but not required – to engage with persons with an interest in the land. This aligns with the seeking of CPO powers under other regimes, which has always been less prescriptive than the Planning Act 2008. | “In such cases [where compulsory acquisition or temporary possession powers will be sought], during the pre-application stage, applicants are strongly encouraged to engage with those who own, occupy or have another interest in the land in question” (para 6.11, Pre-Application Guidance) “Even where land is not compulsorily acquired, applicants should be conscious of individuals who may later have rights to make a relevant claim for compensation (e.g. for example as a result of construction or operational effects) if the DCO is granted and fully implemented” (para 6.13, Pre-Application Guidance) |
Preliminary Environmental Information Reports: PEIRs were mandatory and usually thousands of pages long, with their adequacy commonly disputed. | No PEIR is required. It is for developers to decide what materials to publish in support of any consultation in order to generate the feedback most useful to them. This frees developers up to take the same approach they might for TCPA applications: eg integrating high-level summaries of the main impacts of interest to the public in a short-form consultation document or newsletter, rather than creating a comprehensive standalone report on all impacts. As has always been good practice, more detailed and tailored information can be provided to particular statutory bodies as part of iterative engagement on topics of relevance to them (again, as per other regimes like TCPA). | “Due to the Planning and Infrastructure Act 2025’s (“the PIA 2025”) amendments to the EIA Regulations, there is no longer a requirement for the applicant to publish Preliminary Environmental Information (PEI) prior to the finalisation of the ES” (para 5.7, Pre-Application Guidance) |
Consultation Reports: Consultation Reports were mandatory and often thousands of pages long. When deciding whether to accept the application, PINS had to have regard to the Consultation Report. | No Consultation Report is required. It is for developers to decide how to take into account feedback, and there is no duty to report on this to PINS. | “There is no requirement to submit a consultation report as part of the application, but applicants may wish to maintain a record of how community input has informed the project design and any proposed mitigations in case this is useful for examination” (para 6.16, Pre-Application Guidance) “Recognising there is no statutory requirement to produce a consultation report, some applicants may choose to prepare a short engagement summary to submit with their DCO application or to publish on their website, if they consider this adds value” (para 8.5, Pre-Application Guidance) |
Statement of Community Consultation: Consultation had to be carried out in accordance with a Statement of Community Consultation, hindering flexibility and often resulting in disputes with local authorities about appropriate consultation. | No Statement of Community Consultation is required. It is for developers to decide how best to consult local communities, if at all. | “The scope, nature, timing and extent of work carried out during the pre-application stage is at the applicant’s discretion” (para 7.3, Pre-Application Guidance) |
Precedents resulting in gold-plating: Developers often felt bound by the precedent set by earlier consultations on other projects. | The revocation of statutory pre-application consultation gives developers the flexibility to decide what is appropriate for their own projects. | “Pre-application processes are expected to be carried out in a way which is proportionate to the nature of each proposed development, so that they are effective without being unnecessarily time-consuming and burdensome” (para 3.1, Pre-Application Guidance) |
Digitisation: Although slowly changing in recent years, many developers made hard copies of thousands of pages of consultation materials / the PEIR available at all consultation events and deposit locations. | The guidance recommends a digital-first approach, whilst recognising the need to avoid digital exclusion. | “A digital-first approach can support wider access, but applicants are encouraged to ensure information is also available in alternative formats where applicants consider these are needed or where requested” (para 3.9, Pre-Application Guidance) |
Regard to guidance: Consultation had to be carried out with regard to statutory guidance, which further hindered flexibility. When deciding whether to accept the application, PINS had to have regard to the extent to which the applicant had regard to that guidance. | Statutory guidance on pre-application (other than in respect of section 48 publicity) sets out best practice steps the applicant “might” take, with no duty to have regard to this. | “This guidance makes recommendations but is not intended to be prescriptive, in particular in relation to approaches to engagement and consultation” (para 1.2, Pre-Application Guidance) |
Acceptance of Applications | ||
Compliance with consultation duties: The application could only be accepted if PINS considered that the developer had complied with the pre-application consultation duties. Applications were sometimes withdrawn due to a failure to comply with consultation duties. More commonly, submission was delayed while perceived failures were fixed. Local authorities (often ones who opposed the principle of the projects proposed) had the statutory right to submit criticisms of the 'adequacy of consultation' to PINS. | Adequacy of consultation is no longer relevant to acceptance of the application. | “The degree to which the applicant has chosen to carry out pre-application engagement and consultation, and the applicant’s approach to this, is not a statutory consideration in determining whether an application should be accepted” (para 2.4, Acceptance Test Guidance) |
Satisfactory standard: The application could only be accepted if PINS decided that the application was of a standard considered to be satisfactory. A rigid approach was taken to this, with some applications being withdrawn due to minor inconsistencies or other issues that could easily have been fixed during the pre-examination stage. | The requirement for the application to be of a standard considered to be satisfactory remains. However, where the application is satisfactory but corrections, changes or additions would add clarity or facilitate examination, it should be accepted and the application corrected, changed or supplemented prior to the publication of the notice of acceptance, prior to the start of examination or, in rare circumstances, during examination. | “Minor inconsistencies or matters which can be corrected, updated or supplemented in the pre-examination period without prejudicing the examination should not be reasons for an application to not be accepted” (para 4.1, Acceptance Test Guidance) |
Unresolved disputes: There was an increasing expectation that all key issues had to be resolved with stakeholders before submission of the application. | Key issues should be identified early but this does not require those issues to have been resolved at the pre-application stage and this is not a matter for acceptance. | “This front-loading approach…does not mean every matter must be fully resolved before the submission of a DCO application” (para 3.4, Pre-Application Guidance) “For the avoidance of doubt, the provision of information about the applicant’s assessment of the key issues (and the fact that this may indicate that a number of unresolved matters remain), is not a matter for consideration as to whether the application should be accepted for examination” (para 8.4, Pre-Application Guidance) |
Outstanding Environmental Impact Assessment ("EIA") or Habitat Regulations Assessment ("HRA") information: Applications were withdrawn or delayed where there was outstanding EIA or HRA information. | The absence of such information does not automatically prevent acceptance. Depending on the nature of the information, it may be suitable for the application to be accepted and this information provided post-acceptance. This provides flexibility for example where a statutory nature conservation body (“SNCB”) requests additional surveys late in the pre-application stage. | “An application may still be accepted in situations where a limited amount of further targeted or confirmatory environmental information relating to the EIA or Habitats Regulations is anticipated provided that sufficient information has been submited to identify and assess the likely significant environmental effcts of the proposals - this could be based on desk-top studies, professional judgement and reasonable worse case assumptions ” (para 3.7, Acceptance Test Guidance) |
Disputes with SNCBs: Disputes between the developer and SNCB about the HRA, in particular whether an appropriate assessment or derogation case were necessary, resulted in applications being withdrawn or submission delayed. | Such a dispute does not necessarily mean that the application cannot be accepted and instead it will generally be more appropriate to deal with this as part of the examination. | “The Planning Inspectorate may…accept an application where it is satisfied that the applicant has submitted adequate justification explaining why an appropriate assessment is not required, or where the applicant has provided adequate information to support conclusions of no adverse effects on the integrity of the protected site” (para 3.5, Acceptance Test Guidance) “Where there is disagreement between the SNCB and the applicant about matters relating to the scope, content or conclusions of information provided by an applicant to satisfy the Habitat Regulations, it will generally be more appropriate to test this at examination, rather than for the Planning Inspectorate not to accept the application” (para 3.5, Acceptance Test Guidance) |
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.