Saving the nationally significant infrastructure planning regime

Out-Law Analysis | 30 Jul 2020 | 8:46 pm | 6 min. read

The nationally significant infrastructure projects planning regime in England and Wales is in danger of losing its mojo. We propose that the government should create one overarching 'super' National Policy Statement (NPS) to resolve a growing list of problems.

The storm clouds are gathering over the rather beleaguered and rapidly ageing suite of NPSs that underpin the nationally significant infrastructure projects (NSIPs) planning regime.  Judicial reviews of some NPSs, and also of some approved Development Consent Orders, are sprouting up all over the place. There is a growing and anxious feeling that unless something is done, the wheels could soon begin to fall off the NSIPs planning regime that has been working well since 2010.

Background

In 2007, the then Labour government set out its vision for a new system of planning for major infrastructure that would eventually become the Planning Act 2008. In its Planning for a Sustainable Future white paper, it recognised that "national policy is not sufficiently clear and responsive". In response the government proposed a series of NPSs to provide:

  • "the Government’s objectives for the development of nationally significant infrastructure in a particular sector and how this could be achieved in a way which integrated economic, environmental and social objectives to deliver sustainable development";
  • "a clear policy framework for decisions on nationally significant infrastructure";
  • "the national case for infrastructure development"; and
  • "the primary consideration… in determining applications for development consent, i.e. that they should have more weight than any other statement of national, regional or local policy".

The legal significance of NPSs was then 'set in stone' by the 2008 Act as well as the procedures for their designation and review. Furthermore, their importance and primacy has been noted in recent judicial reviews relating to Heathrow and Drax, as well as in the past in cases on the Hazardous Waste and Tideway Waste Water NPSs.

The importance of NPSs was reflected in the initial raft designated by various Secretaries of State, with nine NPSs designated within five years of the 2008 Act. However, that initial rush has not been followed through, with only three new NPSs since then. The Airports NPS, one of the new NPSs, is currently suspended following the recent Heathrow Court of Appeal decision and the proposed water and new nuclear NPSs are seemingly stuck in the long grass. Furthermore, as recent and proposed court action has demonstrated, none of the NPSs has yet completed a process of being formally reviewed, either partially or fully. This lack of review is despite the 2007 white paper proposing that to ensure that NPSs "remain up to date", they should be reviewed "at least" every five years. Indeed this time period is written onto the face of the Waste Water NPS.

The problem

All this means that the documents that form a cornerstone of the 2008 Act process are inconsistent and also now quite aged in a rapidly changing world. They are increasingly being challenged - both in DCO examinations and in recent and upcoming judicial review proceedings and judgments – leading to uncertainty for all, cost and delay.

This highlights that the NPSs:

  • have increasingly been developed in a piecemeal way over time with no overarching consistent guiding principles, standards and policy, or assessment criteria and decision-making tests like we have for conventional planning through the National Planning Policy Framework.  This has lead to the inconsistent assessment, decision-making and treatment of issues such as climate change adaptability, noise and net gain;
  • do not account for many changes in government and government policy - particularly on climate change and net zero, but also on other issues such as energy mix and investment – or support nationally significant business and commercial projects; and
  • do not account for technological innovations such as solar, energy storage and hydrogen power at scale.

This is leaving infrastructure project promoters facing the problem that NPSs were specifically designed to avoid, namely uncertainty as to whether there is clear government policy support and an established national need for the particular development proposed. This will only continue to deteriorate as further judicial reviews are doubtless brought - causing uncertainty, cost, risk and delay to projects and again undermining one of the key tenets of the 2008 Act regime and, in turn, the nation's economic recovery and 'levelling up'.

Even putting to one side the challenges brought about by net-zero and Covid-19, the country and government are clearly in a different place generally to where they were in the first five years of the regime's existence.  Also, the recent scars of the Heathrow case and government workload pressures add to the strong impression that because of complex and convoluted processes and fear of judicial review, government has put most NPS issues onto the 'too difficult' pile. Whitehall now seems almost institutionally incapable of delivering either new or revised NPSs.

The opportunity

Another key change has been the introduction of the National Infrastructure Commission (NIC), its National Infrastructure Assessment (2018) and specific studies. This is an independent body undertaking the work to demonstrate, using hard evidence, the 'need' for infrastructure. A National Infrastructure Assessment must be undertaken every five years, with government responding accordingly.

In doing so, the NIC has taken an integrated approach to ensure that infrastructure needs are considered as a whole on a national basis and, where relevant, on a regional basis. A good example of this is its studies on the CaMKOx arc and the resilience of our economic infrastructure.

The government does of course then need to make the policy decisions as to whether to support the NIC's conclusions in each National Infrastructure Assessment, and it has committed to doing so through a formal response. This government is calling that intended response in Autumn 2020 its 'National Infrastructure Strategy'.

It is apparent from this that efforts are being made, based on the NIC's work, to ensure that the UK takes a 'global' approach to its infrastructure needs in a sustainable, resilient manner that enables the delivery of net zero.

For the reasons set out above it is now imperative that the government considers the future of the NPSs.  It is our proposal that in doing that the government should look to harness the NIC's valuable work and the five yearly cycle of national infrastructure assessments and national infrastructure strategies.

Our proposal

The overarching NPS for Energy (EN-1) provides the starting principles and policy as well as the need case for all energy projects. It is underpinned by a series of technology-specific NPSs such as those on renewables and transmission. As such, EN-1 provides a sound model that we suggest could be used to provide consistency and certainty at a national level for all nationally significant infrastructure.

Our recommendations are:

  • The government's first priority should be to look to create one overarching 'super' NPS off the back of the work carried out for the National Infrastructure Strategy.  This would set out the government's high level priorities, needs, objectives, assessment principles and decision-making tests, and any standards for new infrastructure across all sectors.  It would integrate economic, environmental, design and social objectives to deliver sustainable development that supports the net zero transition as well as including any strategic spatial considerations. As the 2007 white paper and the 2008 Act make clear, a NPS can deal with 'one or more' types of infrastructure. The overarching NPS could also contain policy to filter down to the lower levels of infrastructure consenting that are covered by the conventional planning system.
  • This would enable a consistent and well-evidenced basis to establish policy on need, assessment principles and decision-making tests, without then introducing repetition and inconsistencies for different sectors and by different departments – it would be 'the government view'.
  • The overarching NPS would be supported by a series of sector-specific annexes. Both the overarching NPS and the annexes could draw on the existing suite of NPSs as necessary and appropriate but they would all be withdrawn once the overarching NPS and its annexes had been designated following consultation and Parliamentary scrutiny.  This would avoid the need for a series of multiple reviews of the current NPSs with all of the uncertainty, instability, delay and disruption that would result in.
  • The whole package would then be reviewed, as was always intended, every five years as part of the government's response to each National Infrastructure Assessment – so in a holistic way. It could then be replaced in whole or in part, or simply updated, as circumstances require. In between it would be considerably easier for the annexes to undergo 'mini reviews' if necessary - for example simply reviewing the assessment criteria for one type of infrastructure - and indeed to add annexes.
  • All of this process could be done and achieved under the current 2008 Act and the review process would be much more manageable.
  • In common with other commentators, and indeed what many believe to be the NIC's view, we think housing should be seen as national infrastructure and so be included in this new overall framework. However, that would require primary legislation - the only aspect of this proposal that would.

This approach would allow NPSs, the cornerstone of the Planning Act 2008 regime and without which it simply cannot function, to be updated in a way that is holistic, retains certainty, meets the challenges of the 2020s and is efficient and agile – keying into a five yearly process that will take place anyway. What's not to like?