Amended national ports policy statement for England takes effect

Robbie Owen, a port and infrastructure planning expert at Pinsent Masons, said: “The review and updating of the NPS from the version originally designated in 2012 will provide much greater certainty for those seeking to bring forward nationally significant port projects for consenting by the national government.”

“It also provides valuable guidance to other bodies making planning-related decisions applying to port development, particularly the Marine Management Organisation and local planning authorities.  Decisions taken in accordance with the revised NPS should, as a result, be all the more robust in the face of legal challenges than they were before this review,” he said.

Matthew Fox, an infrastructure expert at Pinsent Masons, said: “Whilst an updated statement of national policy support for port development is welcomed, port promoters will need to be particularly alive to its provisions on carbon assessment, alternatives that may lead to debate in examinations, and the nuances of how it applies to projects brought into the DCO regime via the section 35 process.”

An NPS is the government’s primary planning document for nationally significant infrastructure projects (NSIPs) in England under the Planning Act 2008. They shape how future projects are assessed and whether they ultimately receive consent. They also set out the government’s assessment of need for particular types of infrastructure and establish the framework against which development consent applications are examined and determined.

The revised NPS for ports (103 pages/2.31 MB PDF) establishes the government’s position on the ‘compelling’ need for additional port capacity, and the ‘substantial weight’ that should be given to the economic benefits of ports. In doing so, it provides a degree of certainty for investors planning major schemes that it will take significant adverse impacts to outweigh that need and benefit.

The NPS takes the opportunity to give ‘freeport’ status meaning in the planning system. It includes a dedicated section recognising the role of freeports in driving regeneration, innovation and trade, and states that significant weight should be given to the national benefits associated with freeport-related investment and wider freeport delivery.

Although the document places considerable emphasis on the role ports will play in supporting offshore wind, hydrogen, ammonia and other clean energy supply chains, it stops short of granting port infrastructure any equivalent of the ‘critical national priority’ (CNP) status afforded to certain energy projects under the energy NPS framework.

Owen said: “While the NPS supports investment in infrastructure needed to facilitate offshore wind and the energy transition, developers will still need to make their case for key policy tests rather than relying on the policy compliance presumptions that CNP projects enjoy under the energy regime, such as green belt, Site of Special Scientific Interest, and heritage.”

An important legal point detailed in the new statement is the treatment of projects brought into the NSIP regime through a section 35 direction. Under the Planning Act, a section 35 direction is a direction issued by the secretary of state that allows a project which is not normally classified as a NSIP to be treated as one because it is considered to be of national significance.

For ports, this means that a proposed port, harbour, terminal, jetty or related infrastructure can be directed into the development consent order (DCO) process rather than being determined solely through local planning and/or the harbour orders process where it does not meet the statutory criteria for a NSIP, which are based on different tonnage throughputs for different types of cargo.

The statement provides that where a project is not automatically within the NSIP regime but has obtained a section 35 direction, the decision on the DCO application should be taken under s105 of the Planning Act, rather than under s104. S105 states that a secretary of state must have regard to matters that they think are “important and relevant” to their decision, meaning that local plans and NPSs could have equal weight.

This means that, for these projects, the NPS does not enjoy the same statutory primacy it would for projects determined under s104, which requires the secretary of state to have regard to a NPS and make their decision in accordance with it.

Owen said: “That difference could be important for novel port projects, floating offshore wind assembly facilities or other developments that only enter the regime through a s35 direction, and may have chosen to do so because it is known that the development is not necessarily ‘on point’ with a local plan. It is not clear why this approach has been taken, which is different from other NPSs.”

The updated policy includes a lot of text on carbon, including new points relating to climate change mitigation, climate adaptation and decarbonisation. It reflects substantial evolution of government policy since 2012 and introduces expectations that go well beyond those found in the original statement.

However, Fox said that there are “several areas of uncertainty” within the policy statement.

“These include the direction that the secretary of state should ‘scrutinise’ proposals that do not incorporate renewable energy, without any clear indication of what that scrutiny might entail in practice. The statement's acknowledgement that mitigating downstream Scope 3 emissions can be challenging, coupled with the suggestion that a more international approach ‘may’ be appropriate,” he said.

“In light of the many legal challenges that have been raised in relation to energy and transport projects concerning the interplay between project assessment requirements and emerging national and international strategies, the meaning of this provision is likely to attract close attention in the future,” he added.

A further area of potential debate is the statement that consent could be withheld where an applicant refuses to accept “reasonable and affordable” requirements or obligations relating to the design and operation of a port to minimise greenhouse gas emissions.

“This raises questions about what will be considered ‘reasonable and affordable’ for individual ports, and how those judgments will be applied in practice,” said Fox.

The update notes that the treatment of alternatives will be familiar to those who responded to the consultation draft of the revised statement.

The revised NPS retains wording that “alternatives not among the main alternatives initially studied by the applicant…should only be sought from the applicant to the extent that the examining authority think they are both important and relevant to its advice”.

Owen said: “The continued inclusion of this provision leaves discretion in the hands of examining authorities when deciding whether further alternatives analysis should be required during examination, meaning that port promoters will need to continue to ensure a robust process is followed in considering and dismissing alternatives. It is welcome to see that the document recognises that port masterplans can form part of the evidence base supporting site selection and alternatives assessment.”