The Welsh Government introduced the Infrastructure (Wales) Bill to the Senedd on 12 June. Here are our thoughts on it:
- The Bill is likely to be enacted within the next couple of years (Q1/2 2025). It will be supported by a raft of secondary legislation which has not been drafted yet. It will revoke the existing Developments of National Significance (DNS) regime.
- The Bill is intended to reflect the ‘best bits’ from the DNS and the Nationally Significant Infrastructure Projects regimes. As such, there are familiar aspects from both regimes weaved into the legislation.
- The thresholds and criteria for what constitutes a significant infrastructure project (SIP) are likely to be subject to further consultation over the next 12 months (so look out for these as they’re published by Welsh Government (WG).
- Developers will have to apply to WG for an Infrastructure Consent Order (ICO) to permit the development types set out in the Bill. The thresholds for these types of infrastructure are also set out in the Bill. An ICO will be a statutory order, similar in nature to a Development Consent Order (DCO) required for NSIPs. A draft form ICO is expected to be included in draft regulations.
- The Bill covers energy and overhead lines, LNG facilities, gas reception facilities, fracking, open cast coal mining, highways, railways, rail freight interchanges, harbour facilities, airports, dams and reservoirs, water transfer operations, waste water treatment plants, hazardous waste facilities and geological disposal facilities for radioactive waste.
- The Bill leaves open a two-tiered consenting approach which WG has previously stated it favours. Annex 3 in the Explanatory Memorandum sets out these optional categories.
A good example of this is the approach to energy development where an ICO will be mandatory for energy projects over 50WM. It will be optional for projects between 10MW and 50MW with the ultimate decision on whether a project is a SIP being determined by WG. Developers can apply for a direction specifying that their project is a SIP. Non-SIP projects in the 10MW to 50MW bracket are expected to be subject to the ‘normal consenting regime’ i.e. a standard TCPA application to the LPA.
The Explanatory Memorandum states that “it is assumed that applicants may choose to pursue the IC determination process for certain categories of developments categorised as optional ICs (such as solar farms and wind turbines) … [but] will choose to apply to the normal consenting authority for other, more minor schemes types.” Clarity on how this will work in practice is expected to be provided in guidance and will be welcomed.
- An ICO can include associated development, ‘requirements’ (i.e. conditions) to control the development, provisions to amend other legislation as it applies to the development, amend local legislation, stop up and divert public rights of way, divert watercourses and include a deemed marine licence.
- Compulsory purchase powers can be sought as part of an ICO (with special provisions relating to undertakers’ land, National Trust land, commons & open space land, Crown land etc.). It’s worth noting that CP is a devolved matter, although the compensation code is not.
- The ICO will bind the land and not benefit the developer personally.
- WG can designate Infrastructure Policy Statements to guide the decision making process for SIPs. This places a question mark over the status of the National Development Framework (Future Wales) in relation to SIPs/ICOs but guidance is again likely to clarify this.
- There’s no indication of any transitional arrangements but this is likely to be set out shortly by WG. It will be a concern for DNS projects in the initial design phase with expected submission dates towards the end of 2024 / early 2025.
- WG is expected to introduce a draft Planning (Wales) Bill shortly (a Bill to consolidate all planning legislation as it applies to Wales). There may also be consequential amendments in this Bill that cover ‘optional’ SIP projects e.g. could we expect to see a streamlined process for the optional SIP projects?
Clearly this is an important Bill to watch as it progresses through the Senedd and Committee stages. An overview of the next stages for the Bill is included on the Senedd’s website.
If you have any questions on the proposed process or how this interacts with proposed DNS projects, please contact Stephen Humphreys on s.humphreys@ashfords.co.uk.
