Significant infrastructure projects (SIP): how Infrastructure Consent Orders (ICO) are enforced

The enforcement regime for Infrastructure Consent Orders is set out in Part 7 of the Act (sections 103 to 123).

The infrastructure consenting regime can be breached in two ways:

• carrying out development, or causing development to be carried out, of a significant infrastructure project without obtaining the necessary Infrastructure Consent Order, or
• a breach of, or failing to comply with the terms of an Infrastructure Consent Order (subject to section 83(3) of the Infrastructure (Wales) Act 2024)

If a person is found guilty of either offences, both methods of breach carry an unlimited fine by way of penalty either on summary conviction, or on conviction on indictment.

Section 105 of the Infrastructure (Wales) Act 2024 specifies that a person may not be charged with an offence after the end of a period of 4 years, beginning with:

• the date when development was substantially completed, or
• the later of the date when development was substantially completed and the date on which the breach or failure to comply occurred

However, the 4-year period may be extended if an information notice is served or an injunction is applied for during this period.

Enforcement is, in the first instance, the responsibility of the relevant local planning authority. However, the Welsh Ministers also have equivalent powers for enforcement, where it is considered necessary or appropriate. For example, it may be in the public interest, or more efficient for the Welsh Ministers to use such powers where a breach crosses multiple local authority areas.

Enforcement of any offences solely in the Welsh marine area will be the responsibility of the Welsh Ministers.

Enforcement proceedings are generally split into three phases:

• Investigation
• Prosecution
• Notice of unauthorised development

Investigation

Officers have the power to enter land for enforcement purposes without a warrant (or in urgent cases where access has been refused, the power to obtain a warrant) to investigate and gather evidence, if they believe a breach has occurred. However, this power does not extend to Crown land.

They also have the power to serve information notices to request evidence if a suspected breach has occurred. Any person on whom an information notice is served must comply with requirements specified in the notice within a period of 21 days. Non-compliance constitutes an offence and a person found guilty of not complying with requirements specified in the notice is liable on summary conviction to a fine.

Local planning authorities also have the power to issue temporary stop notices if they consider an activity has been, or is being, carried out which would constitute an offence and the activity (or part of it) should be stopped immediately. However, they can only be issued for potential offences on land and not in the Welsh marine area. The Welsh Ministers do not have the power to issue a temporary stop notice.

Temporary stop notices will have effect for a period 28 days and a second or subsequent notice may not be issued in relation to the same activity unless the local planning authority has, since issuing the previous notice, taken other enforcement action in relation to the activity.

It is an offence for a person to carry out an activity prohibited by a temporary stop notice while it has effect. A person found guilty of an offence is liable on summary conviction, or on conviction on indictment, to a fine.

Prosecution

Where a local planning authority or the Welsh Ministers are satisfied that sufficient evidence is available to decide to prosecute, enforcement proceedings can be heard in the courts (either in the Magistrates’ Court or Crown Court) as offences can be triable either way.

Any person (or persons) found guilty of an offence of either carrying out development of a significant infrastructure project without obtaining the necessary Infrastructure Consent Order or contravening or failing to comply with the terms of an Infrastructure Consent Order, will be liable to a fine, which may be unlimited.

It will be for the courts to determine the amount of a fine, based on the nature and scale of the offence.

Notice of unauthorised development

Where a person is found guilty of an offence in respect of any land in Wales, the local planning authority or the Welsh Ministers can serve a notice of unauthorised development under section 113 of the Infrastructure (Wales) Act 2024.

These notices can contain conditions or require works or require the removal of any unauthorised works or the restoration of land to its previous condition. If a notice of unauthorised development is not complied with within the timeframe specified, the local planning authority or the Welsh Ministers have the power to take action in default, entering onto the land and carrying out the required work themselves, recovering any costs required from the convicted party.