The Infrastructure (Wales) Bill
This week, the Welsh Government introduced the Infrastructure (Wales) Bill, which intends to establish a unified infrastructure consenting process for specific major onshore and offshore (within Wales’s territorial waters) infrastructure projects.
The Bill establishes a new designation for major infrastructure schemes known as ‘Significant Infrastructure Projects’ (SIPs). These SIPs will require approval in the form of new ‘Infrastructure Consents’ (ICs).
Under the current system, large infrastructure schemes often need multiple forms of approval through various individual consents, licences or authorisations. Under the new regime, all of these individual forms of authorisation will be wrapped up into a single IC meaning that to progress, major infrastructure schemes will only need to apply for one IC in the future.
This new regime will replace a number of statutory regimes for the consenting of infrastructure projects, including the Development of National Significant (DNS) process.
The following types of infrastructure are defined within the Bill as a SIP:
· Energy and gas extraction
· Water services
· Gas reception facilities
· Hydraulic fracturing for oil and gas and coal gasification
· Open cast coal mining
· Rail freight interchanges
· Hazardous waste facilities
· Radioactive waste geological disposal facilities
The Bill is expected to take between 9 to 12 months to become law, after which the Welsh Government will need further time to prepare subordinate legislation. There is no confirmed timetable as yet, but the existing regime is likely to be in place until at least summer 2024.
The New Application Process
The Bill introduces a unified consenting process, through a “one-stop-shop”. Certain permissions, licenses, consents and other planning requirements which are issued under different consenting regimes, will be obtained as one package under the Bill.
The Bill also defines thresholds for what is included within this new consenting regime (outlined below). However, the legislation also provides Welsh Ministers with the power to issue a ‘direction’ – that is to include applications within this consenting regime which may fall below the threshold detailed in the Bill. This is akin to a call-in process.
Parts 1-4 of the Bill outline what Significant Infrastructure Projects will be covered by the Bill, requirements for consent, the application process and how applications will be examined. Key points include:
· A development which is, or forms part of a Significant Infrastructure Projects (SIP) will now need “infrastructure consent”. The type of development which falls into this category will be determined by Welsh Ministers, however, the Bill provides definitions covering electricity infrastructure; energy; gas extraction; highways alteration or improvement; railway construction; harbour facilities; airports; and water resources.
· The Bill outlines the Welsh Government’s aim to provide pre-application services – by either Welsh ministers or local planning authorities. It is intended that these services will assist prospective applicants ahead of the application submission.
· Applicants must notify Welsh Ministers, planning authorities and other persons of their proposed application for infrastructure consent.
· They must also carry out consultation and publicity on their proposed application, with future laws setting out what this consultation should look like and who to consult.
· Applications must specify the development to which they relate and include a pre-application consultation report and a draft infrastructure order – Welsh Ministers are given the power to make regulations on the form and content of applications, how they are made, information and materials which must be included and how an application will be processed.
· For those applications for developments in the Welsh marine area, Natural Resources Wales must also submit a marine impact report.
The Bill outlines that the examining authority or Welsh Ministers must decide an application within 52 weeks of the day on which it is accepted as valid, or any other period which has been agreed between the applicant and Welsh Ministers (although Ministers have the power to extend the periods for deciding applications).
The Minister is keen to stress that following the Wales Act (2017) and the devolution of certain infrastructure powers within it, there is a need to reform the consenting regime in Wales. The Minister articulated her belief that 2017 Act has left Wales with an “out-of-date consenting process” and that this makes Wales a less attractive place for investment.
The Bill has received cautious welcome from the opposition parties, with the Conservatives, Plaid Cymru and the Liberal Democrats all expressing the view that any new regime must strike the right balance delivering new infrastructure and ensuring proper public engagement.
There was cross-party consensus that the existing regime was difficult for communities to engage in, and that a streamlined process would make it easier for the public to participate in the process. Some members, including the Minister, also asserted that the view that new regime would be more transparent – which would benefit developers.
Having been formally introduced on 12 June 2023, the Bill will now progress through the four stages. It is anticipated that this will take between 9 to 12 months. It is expected that the definitions of an SIP and regulation-making powers will come into force on the day after Royal Assent.
Points of debate are likely to focus on the issue of ‘balance’; that is, whether the Bill strikes the right balance between efficient development ‘versus’ community engagement, and net zero development versus protecting nature. There is also likely to be a debate on whether the Bill gives Welsh Ministers too much power, and how much detail should be included in the Bill (versus in secondary legislation).
Timeline and next steps
The Bill was formally introduced to the Senedd on Monday 12 June and is currently in ‘Stage One’. At this stage, the Senedd is currently considering the general principles of the Bill, whether the Senedd has legal competence to legislate in this area, and the general impact of the Bill on the Welsh Government’s budget.
Given the summer recess, it is likely that Stage Two of the Bill will begin in the Autumn. At this stage, the Senedd’s Climate Change, Environment & Infrastructure Committee will begin detailed consideration of the Bill and consider amendments. The Committee is likely to request written evidence from the public and external stakeholders and invite some of those respondents to appear in front of the Committee to provide oral evidence. This process is likely to take some months. Following Stage Two (committee stage), the Bill will be debated by the whole Senedd where amendments will be debated and decided. When the Bill is in its final draft form, it moves into Stage Four where the Senedd formally approves or rejects the Bill. After a short period, the Bill if passed would then receive Royal Ascent and become law.
The Welsh Government will likely be keen to involve external stakeholders in the Bill’s formation, so there is likely to be an opportunity for organisations to engage with Welsh Government through this process, as well as directly. Further, there will be opportunities to engage the Committee and key Senedd Members throughout this process.
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