Out-Law News 5 min. read

Proposed data sharing platform ‘invaluable’ for future NSIPs

Planning law experts have welcomed proposals for a new data sharing platform outlined in a report on how to speed up the delivery of nationally significant infrastructure projects (NSIPs) in England.

The independent report, published by the National Infrastructure Commission (NIC) last month, sets out recommendations to the government on infrastructure planning in England over the next five years. One key reform suggested by the NIC was the creation of a new data sharing platform for “environmental data with clear data standards” by the end of 2024. The NIC proposed that this platform could then be used to share “relevant developer and local nature recovery strategy data”.

Planning and environment expert Jan Bessell of Pinsent Masons said it was “really encouraging” to see the NIC recommend that Defra introduce a data sharing platform. “A consistent and verified source of up-to-date baseline information will be invaluable for all involved in infrastructure projects, and help to remove uncertainty, inefficiencies, delay and debate over the adequacy of baseline environmental information. A data sharing platform could also deliver the benefits of a more strategic approach and delivery of better, sustainable, and more cohesive environmental outcomes and nature recovery,” she added.

Infrastructure expert Robbie Owen of Pinsent Masons said the NIC’s “very forward thinking” recommendation had the potential to “significantly speed up the consenting process” for individual projects by up to 12 or even 18 months. “It would also help to ensure more accurate and consistent environmental impact assessment and habitats regulations assessment, particularly as we move towards a new system of environmental outcome reporting,” he added.

The report came after the government asked the NIC to carry out a study of England’s NSIP system and national policy statements (NPSs) in February. It explored the “future of NPS review cycles, actions the government could take to ensure NPSs provide greater certainty for investors, infrastructure developers and communities, and other related good practice”. The NIC has warned that without a number of reforms, it is “likely” that the system “will become a major barrier to government achieving its policy goals”.

Robbie Owen

Robbie Owen

Partner, Parliamentary Agent

The National Infrastructure Commission’s report is certainly far reaching and has the potential to tackle in a number of significant ways those factors and issues that have most dragged the NSIPs consenting regime down in recent years

According to the report, while the process for approving NSIPs under the 2008 Planning Act initially worked well, since 2012 consenting times have increased by 65%, and now take an average of 4.2 years. The report said the rate of judicial review has “spiked” in recent years to 58% - up from a long-term average of just 10%. The NIC concluded that the lack of review of NPSs since they were first issued and the need for “clear supplementary guidance” contributed to the mounting delays.

In its report, the NIC recommended that the government should introduce legislation by 2025 to make reviews of the NPSs for energy, water and national networks at least every five years a legal requirement. Ministers should also introduce clear tests on spatial plans and clear timelines and standards for consultation during the pre-application process for proposed NSIPs. They should amend legislation to bring onshore wind back into the NSIP system as soon as possible, the NIC said.

The report found that “old and sometimes subjective guidance” meant that policy questions are debated at examinations and forces the Planning Inspectorate’s role to shift from “inquisitor” to “arbiter”, which lengthened consenting timeframes. “When guidance is open to interpretation, it is open to the risk of legal challenge, causing delays. Developers also spend more time in the pre-application stage attempting to risk proof their projects against this threat,” the NIC said.

The NIC concluded that “inefficiencies and uncertainties” in England’s planning system’s approach to the environment also slowed down consent times and “reduced the quality of outcomes” with duplication of data. The NIC said NPSs need to keep pace with legislative changes and that, by January 2024, the government should introduce a “system of modular updates” to NPSs linked to primary or secondary legislation that set out how these changes relate to existing statements. The NIC added that, by 2025, ministers should set out the criteria for triggering reviews of other NPSs, such as ports, hazardous waste, and geological disposal.

The report said the current system manages the environmental impact of infrastructure on a “scheme-by-scheme basis”, with schemes required to collect up to three years of environmental data – often leading to data duplication. The NIC said that environmental impacts should be managed at the “ecosystem level” instead, adding that statutory consultees should develop “a library of historic and natural environmental mitigations for different kinds of infrastructure” by 2025.The report concluded that the “system is less certain” because of the “lack of clear guidance and expectations” which leaves NSIP proposals open to legal challenge.

The NIC said the government should require baseline environmental data to be shared. The report said consultees should also have “new resource to gather baseline data” and that the government should take a “proactive approach” by agreeing mitigations for urgent infrastructure with developers – first for wind generation and electricity transmission, and then water resources – by the end of 2025. Bessell said: “It is interesting to note the report’s findings on inefficiencies in environmental data gathering and the lack of improvement in the environment or outcomes, particularly in the light of the government’s proposals to reform the process for environmental assessments, replacing them with a new system of environmental outcome reports (EORs).”

Bessell also welcomed the NIC’s proposals for the government to take responsibility for data gathering and developing the approach to mitigations. She said: “The recommendations, if taken forward, could potentially mean the delivery of more cohesive environmental outcomes and nature recovery in a spatial context.”

In early 2022, the Business, Energy and Industrial Strategy (BEIS) Committee called on the government to explore the potential for a single NPS to govern decision-making over NSIPs across sectors – first proposed by Pinsent Masons. Last month, the government responded to the Committee’s report (12 pages / 190KB PDF). It said that, at present, the “government has no plans to create a single NPS for infrastructure as part of its reforms of the NSIP process". It added, however, that the Department for Levelling Up, Housing and Communities (DLUHC), working together with the Planning Inspectorate and other relevant departments, will “consider the merits and possibility of consolidating NPSs over the longer term”. 

Jan Bessell

Jan Bessell

Strategic Planning Advisor

The recommendations, if taken forward, could potentially mean the delivery of more cohesive environmental outcomes and nature recovery in a spatial context

According to the NIC report, the “scale and rate of infrastructure change required” to meet net zero, energy security, climate resilience and growth goals meant that the government should scrap the current voluntary system for reporting community benefits. It should be replaced with new measures to “ensure local communities receive consistent, tangible and fair benefits from hosting network infrastructure that supports national objectives”.

The NIC said that, by the end of 2023, the government should develop “a framework of direct benefits for local communities and individuals where they are hosting types of nationally significant infrastructure which deliver few local benefits”. It added that developers should be required to “engage with communities early to understand their needs”.

Ministers were also advised by the NIC to create a “central coordination and oversight mechanism” reporting to the prime minister or the chancellor, with measurable targets for reducing consenting times for NSIPs by the end of the year. By May 2024, the NIC said performance indicators for statutory consultees operating under a cost recovery model should form part of compulsory service level agreements with developers. It added that developers’ applications should only be accepted for examination once a service level agreement is in place.

Owen said: “The NIC’s report is certainly far reaching and has the potential to tackle in a number of significant ways those factors and issues that have most dragged the NSIPs consenting regime down in recent years. These include out-of-date NPSs, unresponsive and inadequately resourced statutory consultees, the ‘start from scratch each time’ mentality towards environmental data, and government departments and agencies not coordinating and overseeing matters in an optimal way. Each of these issues has contributed to lengthy consenting processes with delays frequently encountered.”

He added: “The NIC’s recommendations for a system of modular updates to NPSs linked to primary or secondary legislation by 2024 would appear to be a sustainable and realistic way to ensure that NPSs are kept up to date. They would be a feasible alternative to moving to a single NPS, recognizing Whitehall’s complex workings and interrelationships.”

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