Infrastructure (Wales) Bill update: how will infrastructure projects be affected?

The Infrastructure (Wales) Bill proposes a new process for infrastructure consenting in Wales, after being introduced to the Senedd, the Welsh Parliament, in June 2023. Our full thoughts on the bill as originally introduced can be viewed here.

Ten months on and the bill has proceeded fluidly through committee consideration. On 19 March a plenary session of the Senedd disposed of further proposed amendments. A final form of the bill has been published (see here) and will be subject to final Senedd approval (Stage 4) on 16 April 2024. Given the general support that the bill has received in the Senedd we expect it will clear this final hurdle and then proceed to Royal Assent, when it becomes law.  

This article highlights the changes that have been proposed to the bill since its introduction, what they will mean for new Significant Infrastructure Projects (SIPs) and whether the Welsh Government will use Infrastructure Policy Statements (IPSs) to support them. 

What is changing?

The Infrastructure (Wales) Bill will revoke the existing Developments of National Significance (DNS) regime which will be phased out subject to yet unknown transitional arrangements. It will introduce a new consenting procedure for SIPs; a one stop shop which will incorporate all the consents necessary to deliver significant infrastructure in Wales. The procedure will mean applying to the Welsh Ministers for an Infrastructure Consent Order which will be a statutory order, similar to a Development Consent Order required for a Nationally Significant Infrastructure Project.

Having been through the scrutiny process, the final form of the bill is largely unchanged from the original, with most opposition amendments being voted down. Some notable changes to the bill since it was introduced include:

• The procedure for examining an application under the SIP procedure now must include a hearing or a local inquiry, unless the appointed examining authority specifically considers that this would not assist them. Note previous comments from the Minister that use of inquiries is likely to be very limited.
• Regulations may require open floor hearings to take place as part of the Examination procedure.
• The power to enter land for the purpose of inspection as part of an examination may no longer be exercised without explicit authorisation in writing from the Welsh Ministers. It will be interesting to see how this interacts with the powers under s.172 of the Housing and Planning Act 2016 (i.e. where an acquiring authority has a right to enter and survey land).
• When deciding applications, Examining Authorities and the Welsh Ministers are now required to have regard to the desirability of mitigating and adapting to climate change.
• Secondary legislation will provide a sweeping power for the Welsh Ministers to direct that requirements imposed in the bill do not apply in certain cases. However, it is now required that a statement be provided to the Senedd explaining the effects and reasons for the exercise of such a power. 

Whilst the supporting secondary legislation is not in the public domain yet, we understand that it is being drafted in earnest and will be subject to consultation later this year in line with the Minister’s letter of 9 January 2024 (see here). The current intention is to introduce 6-8 new statutory instruments to support the regime. 

What will the amendments mean for significant infrastructure projects?

Although the legislation specifies a number of project categories which will qualify as SIPs under Part 1 of the bill, the further category of ‘optional SIPs’, as they are described in the updated explanatory memorandum to the bill, remain capable of being designated by Welsh Ministers. The specific thresholds for these optional SIPs are not set out in the bill but they are likely to be part of the suite of new supporting regulations. 

In short, the Welsh ministers will be able to direct which projects constitute SIPs. In an energy context this means that schemes with a capacity of between 10MW and 50MW (onshore) and 1MW to 50MW (offshore) will be optional SIPs, whereas those above 50MW will be mandatory. Interestingly, battery storage over 10MW is also listed as an optional SIP category even though there is no mandatory category for this technology.

Will the Welsh Government use Infrastructure Policy Statements to support significant infrastructure projects?

A further point currently under discussion is whether the Welsh Government uses IPSs to support SIPs or whether the current policy framework is sufficient to determine them - for example Future Wales, Planning Policy Wales, Technical Advice Notes, Local Development Plans etc. 

The Welsh Government’s current intention is to use the current policy framework despite the power to introduce IPSs being included in the IWB. Our view is that IPSs should be drafted to support the deployment of new infrastructure in Wales. This is particularly so in terms of setting a clear position on the need for these projects and also to focus on issues which are relevant to the types of infrastructure being promoted, which are often lacking in more broader policy and guidance documents. 

In our view the current policy framework can be unclear and the introduction of ad hoc policy with little consultation, usually with changes being brought in via Dear CPO letters and Planning Policy Wales. This has caught a number of developers off-guard midway through projects. A testament to the NSIP process is its success rate and much of this reflects a clear and stable policy framework which promotes good development.  

If you have any questions on the proposed process or how this interacts with proposed Developments of National Significance projects, please contact Stephen Humphreys or Barney Elbourn.