Significant infrastructure projects (SIP): how to draft an Infrastructure Consent Order (ICO)

An Infrastructure Consent Order (ICO) is subordinate legislation and should follow statutory drafting conventions. The ICO should be accessible to all stakeholders and written in a way that is clear and understandable, so that people know and understand the consent granted.

The ICO must be drafted in full by the applicant and submitted, together with other documents, with the SIP application. 

The Explanatory Memorandum enables the Examining Authority, stakeholders, and Welsh Ministers to understand the draft ICO by outlining the reasons for its contents. The Explanatory Memorandum clarifies how and why the ICO is tailored to meet the unique requirements of each development. 

Given the wide range of powers available, the Explanatory Memorandum should justify each article and requirement. This should explain why the inclusion of the power is appropriate for the development , and not generally. The extent of justification should be proportionate to the degree of novelty and/or controversy of that particular power.

A clear, precise and fully justified Explanatory Memorandum can reduce examination questions about the draft ICO. For each provision, different stakeholders will want to be satisfied about certain matters, such as:

• the source of the provision
• the section/schedule of the IWA 2024 under which it is made
• why it is relevant to the proposed development
• why the applicant considers it to be important/essential to the delivery or operation of the proposed development.

Where applicants are seeking deemed or extinguished consents these should be clearly stated so that all stakeholders can identify the effect on other regimes. This is particularly important where the other body is responsible for that regime, including approval of the consent in the ICO, or its ongoing monitoring and control. 

Using the Welsh Statutory Instrument template

A ICO must be made in the form of a Welsh Statutory Instrument (WSI) if it includes ‘legislative provisions’ that for example apply, amend or exclude other statutory provisions (see section 63 and 85 of the IWA 2024). ICOs that do not contain legislative provisions must also follow formatting requirements, and the WSI is encouraged for all orders, irrespective if they are an SI, as it provides clarity and consistency for the consenting process. Please contact PEDW to discuss the format of the order. 

Checking the order 

Before an application is made to PEDW, the draft ICO should be thoroughly checked to remove typographical errors and to ensure consistency across the whole document. These checks should also be undertaken during the examination, whenever changes are made that affect the draft ICO.

The Legislation Publishing Service provides a validation process a which evidences that the draft ICO is error free and on the correct version of SI template. The copy of the order submitted with the application, and the applicant’s final draft ICO submitted towards the end of the examination must have been cleared through and be accompanied by a copy of the Validation Success email. Should draft ICOs be submitted with errors or without a successful validation email, applicants will be asked to resolve the errors and resubmit with a Validation Success email. 

How to make a revision

Changes to the draft ICO may well be put forward by the applicant during the course of the examination as a result of:

• responding to questions raised by the Examining Authority;
• responding to representations made by Stakeholders; or
• responding to agreements reached with Stakeholders.

The examination timetable may make provision for revised version(s) of the draft ICO to be submitted by the applicant. Applicants may also be permitted to submit a revised draft of the ICO at other times during the examination, for example in connection with a variation to the application.

There needs to be a clear audit trail to identify changes to the draft ICO and the reasons why those changes have been made. This will assist stakeholders to understand how the form of any final ICO has come about.

Keeping track of changes 

To maintain a clear track of changes, applicants should ensure that each revised draft ICO, and accompanying explanatory memorandum is accompanied by:

• a track changed version of the draft ICO highlighting any changes made from the previous version (and identified by a suitable filename);
• a track changed draft accompanying Explanatory Memorandum highlighting all of the changes made from the previous version (and identified by a suitable filename) or, depending on the number of versions, at points during the examination;
• a supporting explanatory document of the changes. This should explain any amendments in a proportionate and concise way. This is so that Stakeholders and the Examining Authority can understand the purpose and effect of any changes.

A fully updated Explanatory Memorandum must be submitted with the final version of the applicant’s draft ICO submitted towards the end of the examination. It will therefore be necessary for applicants to keep a detailed and comprehensive audit of changes made to the draft ICO during the course of the examination to inform the final version of the Explanatory Memorandum. 

Where interested parties other than the applicant have suggested amended or new draft ICO provisions in their representations, they should also provide a an explanation in support of the proposed amendment or new provision.

Guidance is available on the drafting of Welsh legislation: Writing laws for Wales: guidance on drafting legislation. This should be followed to ensure the SI is clear to follow and legally sound. 

The length and extent of an ICO depend on the size and complexity of the proposed development, the specific powers involved, and the quantity and types of consents and authorisations issued.

Each ICO must be drafted to meet the specific circumstances of the proposed development. The standard approach is to set out the main provisions as articles grouped into appropriate parts (sections). For example:   

• the date upon which the order comes into force;
• definitions of key terms in the ICO and provisions setting out how to interpret the ICO;
• the principal powers including:
• development consent granted by the ICO;
• the parameters of the authorised development and permitted limits of deviation;
• the authorised use;
• the maintenance and operation of the authorised development;
• who will benefit from the powers in the ICO and whether these can be transferred to another body; and
• the application and disapplication and modification of legislative provisions;
• necessary and supplementary powers in relation to:
  • highways works, discharge of water, authority to survey and investigate land, and works to protect buildings;
  • where appropriate, powers of acquisition including compulsory acquisition, powers to extinguish public rights of way, temporary use and possession of land to carry out and maintain the authorised development and recovery of costs of new connections;
• the procedure for obtaining approvals and discharging requirements attached to the ICO and where necessary, an appeals mechanism against refusal;
• protection of statutory undertakers’ interests including apparatus;
• where appropriate, a deemed marine licence;
• any necessary operational powers to deal with matters such as felling or lopping of trees and removal of hedgerows; and
• general matters such as the certification of plans and documents, provision for electronic communications, and application of landlord and tenant law.
• Where appropriate, other deemed consents

The powers and provisions in the articles will be covered in the Schedules to the ICO as necessary. Each provision may contain conditions which could have been imposed on the grant of any permission, consent or authorisation which would have been required for the development if it had been consented through a different regime. Requirements should therefore be precise, enforceable, necessary, relevant to the development, relevant to infrastructure consenting and reasonable in all other respects.

The following provides information on specific considerations for the drafting of an ICO. 

Definitions

Definitions should be applied consistently throughout the draft ICO and applicants should note that:

• terms defined in the parent legislation (ie the IWA 2024) need to be restated in the ICO as they do not automatically transfer across.  
• the use of different definitions for the same term within different parts of the draft ICO should be avoided wherever possible (for example setting out two different meanings of ‘apparatus’). If this is unavoidable, then the definition in the Interpretation Article should make clear that it is subject to another definition elsewhere in the draft ICO;
• generally, a definition for ‘The Welsh Ministers’ should not be provided (government departments ask for a general Welsh Ministers to be assumed to allow for future changes to government machinery);
• care should be taken to ensure that the definitions provided in draft ICOs do not conflict with any of the definitions provided in s235 of the IWA 2024 (where there is conflict, applicants should explain and provide justification in the Explanatory Memorandum); and
• definitions should not be used to try to make substantive provision about what can and cannot be done under an ICO, nor to try to give effect to or introduce Schedules.
• Where there is more than one relevant planning authority (or other authority), this should be made clear in the definitions.

Certification articles

An article and Schedule in the draft ICO must list the range of plans and other documents which are required to be certified as true copies by the Welsh Ministers following approval of the ICO. 

Applicants should limit those plans and documents needing certification to those which are secured under the ICO. However applicants should avoid referring to ‘any other plans or documents referred to in this Order’ since this is insufficiently clear and lacks precision.

Plans and other documents which are required to be certified such as the Land Plans and Works Plans should be specifically listed in the relevant Article. Applicants should set out the titles and numbers of such documents, either in the certification Article or, if there are a large number of documents, in a separate Schedule or Schedules to the ICO.

The Environmental Statement (ES) may need to be certified as adherence with the assessment findings may be relevant when discharging requirements.  If during the course of an examination ‘environmental information’ is provided which affects the findings in the ES then applicants should consider if this information should also form part of the certification of the ES.

Securing mitigation

An application may have significant adverse environmental effects that require mitigation. Where there are these impacts, there  effects will be identified in the accompanying Environmental Statement and/or relevant environmental information. Any mitigation measures relied upon must be robustly secured, and be clearly capable of being delivered. This will generally be achieved through Requirements in the draft ICO. 

Mitigation may include adherence with control measures established through relevant management plans. These may be submitted with the application or secured by condition depending on the specific circumstances. A ‘Table of Mitigation’ may assist in setting out how and where mitigation measures relied upon are secured in the draft ICO.

How are final details approved or varied 

Section 63 of the IWA 2024 allows for the ICO to include proposals that require the future consent from the Welsh Ministers ‘or any other person’. 

When preparing the draft ICO, applicants should consider carefully the aspects that would be appropriate for approval at a later stage. Any provisions in the draft ICO that allow for flexibility must be thoroughly justified within the Explanatory Memorandum and assessed within the ES.

In many cases, the relevant planning authority for the area(s) within which the development is situated, is likely to be the relevant ‘person’ from which to obtain such approvals. Applicants are strongly encouraged to engage at the earliest opportunity about the Requirements proposed to be included in the draft ICO and to agree the best approach to discharging the Requirements, for example to agree a proportionate timescale for discharge depending on the extent or complexity of detail reserved for subsequent approval. 

Removing private rights over land

An applicant may wish to extinguish private rights over land it is acquiring, or over land it already owns or land which is otherwise required for the SIP.

The Land Plan accompanying the application must identify any land over which it is proposed to exercise powers of Compulsory Acquisition . Where an applicant is seeking powers in the ICO to acquire land compulsorily, the drafting of the Article containing the powers should make it clear whether the power will clear the title of the land of all private rights. The applicant may however seek to exclude a particular private right from the blanket extinguishment power. 

Restrictive covenants

It may be appropriate to include a power to impose Restrictive Covenants over part of the land which is subject to Compulsory Acquisition or use under the ICO. In order to enable the Welsh Ministers to consider whether the imposition of Restrictive Covenants is necessary for the purposes of implementing a ICO, and appropriate in human rights terms, applicants should be prepared to fully explain and justify the need for including such powers in the Statement of Reasons. ICO provisions seeking to impose Restrictive Covenants should not be broadly drafted and should identify the land to which they relate and the nature of the Restrictive Covenant.

Protective provisions

Where appropriate, Protective Provisions may be used where a Statutory Undertaker is affected by the proposed development. Where these are needed they should be fully justified within the EM. Supporting information can identify the applicant has reached agreement over the proposed drafting. Where Protective Provisions for that Statutory Undertaker are not sought or required. Ideally this information will be provided as a table listing all of the Statutory Undertakers 

Application, modification or exclusion of statutory provisions

Under section 63(6) of the IWA 2024 ICOs may apply, modify or exclude an existing statutory provision which relates to any matter for which provision may be made in the ICO.

The power to apply, modify or exclude an existing statutory provision should be set out in an Article in the main body of the draft ICO. Those provisions that are proposed to be applied, modified or excluded by a ICO should be clearly identified, and, if extensive, identified in a Schedule or Schedules.

Deemed marine licences

A ICO may ‘deem’ consent for a Marine Licence under Part 4 of the Marine and Coastal Access Act 2009 (MCAA2009), subject to specified conditions. An ICO may also deem more than one Deemed Marine Licence, where this is advantageous for a particular development where there may be distinct elements to the overall development project.

Sub-section 71(1)(b) of the MCAA2009 allows a Deemed Marine Licence to be granted subject to such Conditions as the licensing authority thinks fit. These may, under sub-section 71(2), relate to the activities authorised by the licence and precautions to be taken or works to be carried out (whether before, during or after the carrying out of the authorised activities) in connection with or in consequence of those activities. Sub-section 71(3) sets out six matters that may in particular be dealt with by conditions.