Introducing the Infrastructure (Wales) Bill

Introduction

The long-awaited Infrastructure (Wales) Bill (“the Bill”) was laid before Senedd Cymru (“the Senedd”) on the 12 June 2023 and is one of the most significant changes to the consenting of infrastructure in Wales in a generation.

What does the Bill propose?

The Bill introduces a new unified consenting process for Wales, which will apply both on land and in the territorial sea.  It will capture significant infrastructure projects for which the Welsh Ministers have responsibility to consent. This will include onshore and offshore energy generating stations, certain overhead electric lines associated with a generating station, works to highways and railways, and wastewater treatment plants.

The Minister for Climate Change, Julie James, described the Bill as an “important step” towards delivering on renewable energy targets as Wales moves towards net zero by 2050, noting that, “having an efficient and effective consenting regime is vital to the timely delivery of important infrastructure projects in Wales that make a positive contribution towards our social, economic and environmental prosperity and net zero ambitions.”

This new consenting regime is expected to be fully operational by Mid-2025, and will replace the current Development of National Significance (“DNS”) system. Further details are awaited as to the transitional arrangements that will be put in place for pending DNS applications, which will be key for applicants and local planning authorities who are anticipating submissions in 2025.

Five Highlights

We take a look at five key points arising from the Bill:

1. A Unified Consented Regime – The Bill introduces a unified consenting process for the development of infrastructure in Wales and in Welsh waters; the new form of consent will be known as an Infrastructure Consent (“IC”). Much like the Nationally Significant Infrastructure Project (“NSIP”) regime in England, the IC will be intended to provide developers with a ‘one stop shop’ of all the consents and authorisations they will need to carry out the projects, including compulsory purchase powers.
2. Thresholds and Criteria - An IC will be required for a Significant Infrastructure Projects (“SIPs”). Categories of infrastructure falling within the SIP definition will include energy, transport, waste and water and gas projects. This will include:

• onshore wind generating stations with an installed generating capacity of 50MW and above;
• other onshore generating stations with an installed generating capacity of between 50MW and 350MW; and
• offshore generating stations with an installed generating capacity of between 50MW and 350MW.

3. Ability to opt in – A two-tiered approach is proposed, whereby a proposed tier of optional SIP thresholds and criteria would sit below those compulsory thresholds and criteria.

For these optional projects, a developer can then decide whether they wish to opt into the IC regime or not; if they do, they would then need to apply to the Welsh Ministers for a direction that the project shall be a SIP and subject to the IC process. This appears broadly similar to the process of obtaining a Secretary of State “Section 35 Direction” under the NSIP Regime.  

The Explanatory Memorandum to the Bill sets out anticipated Optional SIP thresholds, which includes onshore and offshore generating stations with expected installed capacities of between 10MW and 50MW.

So, for example, a developer of a proposed 30MW onshore wind farm could decide whether they wanted to apply to opt into the IC regime or remain under the usual consenting route (i.e. which would be planning permission obtained from the local planning authority, following the withdrawal of the DNS regime).

4. Policy Matters – The Bill provides that applications for IC must be decided in accordance with:

• any relevant “infrastructure policy statement”;
• the National Development Framework for Wales (currently this is “Future Wales: the National Plan 2040”); and
• any marine plan prepared by the Welsh Ministers (currently this is the “Welsh National Marine Plan”, November 2019).

The Bill will give Welsh Minsters the power, by notice, to designate a document as an infrastructure policy statement, if it is a document issued by the Welsh Ministers and sets out a policy to guide decision making in relation to significant infrastructure projects. Again, it will be noted this is akin to the role of National Policy Statements under the NSIP regime.

5. Timeframes for Determination -Under the IC regime, there will be a fixed statutory timeframe for the determination of infrastructure projects to provide certainty for the development industry.  This is currently set out as being 52 weeks from acceptance of a valid IC application but may be amended by regulations.

Comment

Stephen Jefferson, Senior Associate in the Planning and Infrastructure Consenting Team at Eversheds Sutherland, comments:

“This unified consenting route, which is a hybrid of the current DNS process and the NSIP regime in England, is certainly welcomed. A streamlined single consenting process will play a key role in bringing forward the delivery of large-scale infrastructure projects in Wales.

“Resourcing is going to be absolutely key. Under the current DNS process, we are seeing problems with delayed consultation responses and engagement due to a lack of resource; this is, in part, why a number of DNS applications are currently in suspension.

“The proposed IC regime, which will offer the full suite of development consents and authorisations, and so by its very nature result in larger applications with more documents to review, is only going to increase the demands placed on consultees. Without stakeholders being appropriately equipped to deal with these larger IC applications, some of the current problems we are seeing with the DNS regime will only be amplified.”

Jack Pugsley, Associate Director in the Planning team in Savills’ Cardiff office, says:

“The draft Bill provides the foundations to deliver much-needed infrastructure in Wales so to allow applicants to bring forward schemes to help Wales achieve their targets. The Bill provides greater certainty, largely through the one-stop-shop approach, allowing applicants to obtain all consents as part of one application.

“There are two particular points of note:

• The optional threshold, e.g. 10 – 50 MW for energy generating stations, is a welcome addition as it provides flexibility to applicants and their projects to utilise the one-stop-shop approach of the IC bill. However, it is important that projects within the optional thresholds are not opted-in by the Welsh Ministers simply due to public discourse or if the scheme is contrary to a policy/LDP (as this can be done via separate powers);
• The possible introduction of Infrastructure Policy Statements to guide the decision-making process for SIPs is welcomed. Whilst Future Wales has its value, something akin to National Policy Statements as part of the NSIP regime in England would be useful – moreover, Wales could take the lead in any onshore wind Infrastructure Policy Statement ahead of any change in England (thereby retaining the competitiveness to which the Minister for Climate Change noted in publishing the draft Bill).”