title: Planning Act 2008 type: wiki tags: [planning, nsip, dco, infrastructure, consenting]
Planning Act 2008
What it is
The Planning Act 2008 is the primary legislation governing the consenting of Nationally Significant Infrastructure Projects (NSIPs) in England and Wales. It replaced a fragmented set of sector-specific consents - section 36/37 of the Electricity Act 1989, Gas Act 1965 orders, Pipe-lines Act 1962 authorisations, and standard planning permission - with a single Development Consent Order (DCO) mechanism. Projects above defined size thresholds cannot be built without a DCO. The Act also created the National Policy Statement framework under which ministers publish standing policy guidance (the energy NPSs EN-1 to EN-6) that the examining authority and Secretary of State must follow when deciding applications.
Why it matters for energy
Every major energy project in England needs to engage with this Act. The 50MW threshold for non-wind/solar onshore generation and the 100MW threshold for offshore generation and onshore wind/solar capture almost all commercially significant new build. A project that meets the threshold must obtain a DCO rather than a section 36 consent or planning permission: there is no opt-out. The DCO process also carries compulsory acquisition powers, which gives developers a single mechanism to secure land rights as well as operational permissions. The interaction with the NPSs is critical: where EN-1 to EN-6 apply, the Secretary of State is bound to decide in accordance with those statements unless narrow statutory exceptions are met. This means NPS policy effectively pre-determines whether a project type is acceptable in principle - individual DCO examinations then focus on site-specific impacts and conditions rather than re-arguing the policy case.
NSIP Thresholds (energy)
| Technology / infrastructure | Threshold for NSIP designation |
|---|---|
| Onshore wind or solar (England) | More than 100MW capacity |
| Other onshore generation (England) - gas, nuclear, biomass | More than 50MW capacity |
| Offshore generation (English waters / REZ) | More than 100MW capacity |
| Welsh non-wind onshore station | More than 350MW capacity |
| Welsh offshore station | More than 350MW capacity |
| Battery storage (co-located or standalone) | Exempt - capacity disregarded entirely |
| Overhead electric line (132kV or above, 2km or more) | All such lines in England or Wales |
| Underground gas storage (England) | 43 million scm working capacity or 4.5 million scm/day flow |
| LNG facility (England) | 43 million scm storage or 4.5 million scm/day flow |
| Gas reception facility (England, overseas gas) | 4.5 million scm/day flow |
| Gas transporter pipe-line (England) | 800mm diameter and 40km length (or significant environmental effect), 7 bar gauge, 50,000 customers |
The DCO Process
- Pre-application (no fixed deadline, typically 18-24 months in practice): applicant carries out statutory consultation with prescribed bodies, local authorities, and landowners; prepares and carries out community consultation statement; submits consultation report with application
- Acceptance (28 days): Planning Inspectorate (on behalf of Secretary of State) decides whether to accept the application - checks correct type, development consent required, pre-app process completed, application satisfactory standard
- Examination (maximum 6 months): Inspector or panel holds preliminary meeting; examination by written representations, specific-issue hearings, and open-floor hearings; compulsory acquisition hearing if requested; examining authority produces report within 3 months of end of examination
- Decision (3 months from receipt of report): Secretary of State decides; must follow relevant NPS unless exceptions in s.104(4)-(8) apply; must grant DCO or refuse - no other outcome
- Judicial review window: 6 weeks from order publication or statement of reasons, whichever is later
Key Changes Since 2008
- IPC abolition (2012): The Infrastructure Planning Commission, created by the Act as an independent expert decision-maker, was abolished by the Localism Act 2011 with effect from 1 April 2012. The Secretary of State now decides all DCO applications. The Planning Inspectorate examines and recommends; the Secretary of State retains the decision. Sections 1-3 of the Act are fully repealed.
- Welsh devolution (Wales Act 2017): Consenting for Welsh generating stations below 350MW (and all Welsh wind regardless of size) was devolved to the Welsh Ministers. Stations above 350MW in Wales or Welsh waters remain NSIPs in the English regime. Associated overhead lines at 132kV or below connected to devolved Welsh stations are also excluded from the NSIP overhead line threshold.
- Battery storage carve-out (Energy Act 2023): New sections 15(3C) and (3D) removed battery storage (other than pumped hydro) from the NSIP threshold entirely. Co-located batteries no longer count toward a generating station's capacity; standalone batteries are not NSIPs. Pumped hydroelectric storage remains subject to the standard thresholds.
- Onshore wind and solar threshold raised (Energy Act 2023): The threshold for onshore wind and solar in England was raised from 50MW to 100MW, aligning it with the offshore threshold and removing a large number of projects from the NSIP regime.
- Planning and Infrastructure Act 2025 (pending): Amendments to pre-application consultation (s.42) and the scope of development consent (s.31) were enacted but not yet applied as of April 2026.
Further Reading
- Canonical source file:
~/knowledge/sources/legislation/uk/2008-planning-act.md- full clause index, defined terms, amendment history, and cross-references - NPS EN-1 (Overarching Energy NPS, revised 2022) - primary policy framework for all energy DCO decisions
- NPS EN-2 (Fossil Fuel), EN-3 (Renewables), EN-4 (Gas Infrastructure), EN-5 (Electricity Networks), EN-6 (Nuclear) - technology-specific NPSs
~/knowledge/sources/legislation/uk/1989-electricity-act.md- predecessor consent regime (ss.36-37) now displaced by DCO for NSIP-scale projects