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Draft revised planning policy for English road, rail and freight development published

Out-Law News | 16 Mar 2023 | 12:34 pm | 4 min. read

A consultation on a revised national networks national policy statement (NNNPS) for national road, rail and rail freight schemes in England has been broadly welcomed by legal experts.

The Department for Transport’s (DfT) consultation on the draft revised NNNPS, accompanied  by an appraisal of sustainability and habitats regulations assessment, will identify whether it is “fit for purpose” and also “whether it provides a suitable framework to support decision-making for nationally significant infrastructure road, rail and strategic rail freight interchange projects”, according to infrastructure planning expert Robbie Owen of Pinsent Masons.

The NNNPS sets out the need case and government policy for secretary of state decisions on applications for nationally significant infrastructure projects (NSIPs) on the national road and rail networks in England under the 2008 Planning Act.

A refocussed statement of need in the draft revised NNNPS establishes a “compelling need for development of the national networks at the strategic level”. However, the statement moves away from the focus in the current NNNPS on congestion and network overcrowding. Instead, it identifies a “range of challenges” faced by national networks such as supporting economic growth; adapting to climate change and technological changes; supporting the UK’s net zero priorities; and enhancing the safety and resilience of national networks.

According to the consultation, “roads and rail are a critical part of the transport network in facilitating connectivity and boosting economic links”. The government has said that it is “committed to continuing to develop these networks, while protecting the environment, strengthening connectivity and growing the economy.”

Under the revised NNNPS, all national network NSIPs should “improve and enhance the environment irrespective of the reasons for developing the scheme”, although some might be specifically designed to do so, such as infrastructure interventions to electrify rail lines and congestion reduction measures that improve air quality.

The DfT said the current NNNPS was “written before the government’s legal commitment to net zero, the 10-point plan for a green industrial revolution, the new sixth carbon budget and the transport decarbonisation plan.”

Under the revised NNNPS, applicants would be required to consider the direct and indirect impacts of climate change “when planning the location, design, build, operation and maintenance” of an NSIP. The secretary of state will require information on how a proposal will “take account of the projected impacts of climate change and remain resilient”. Applicants are also guided to “consider whether nature-based solutions could provide a basis” for climate change adaptation. The draft revised NNNPS provides that positive weight should be given to “projects that embed nature-based or technological processes to mitigate or offset emissions”.

When determining applications for development consent orders (DCOs), the secretary of state must be satisfied that the “applicant has as far as possible assessed the greenhouse gas emissions at all stages of the development” and be “content that the applicant has taken all reasonable steps to reduce the total greenhouse gas emissions from a whole life carbon perspective”. However, the policy statement accepts that there are “likely to be some residual emissions from construction of national network infrastructure” from an economy-wide perspective.

The draft also contains changes to how applicants for projects with significant environmental effects should consider alternative proposals. It should not be necessary to consider alternatives unless there are “exceptional circumstances”, case law requirements or requirements under existing regulations, according to the document. Consideration of alternatives should be “proportionate”, and when alternatives are “vague”, or “have no real possibility of coming about” they will be given “little or no weight”.

Robbie Owen, infrastructure planning expert at Pinsent Masons, welcomed the consultation on the draft revised NNNPS.

“Clearly the government has tried in this revised draft not only to reflect the very changed circumstances since the current NNNPS was designated in January 2015, but also to take on board the outcome of recent judicial reviews of contentious highway schemes”, he said. “This is particularly true of the obligations on project promoters to consider alternatives highlighted by the High Court’s A303 Stonehenge Tunnel decision.”

“It will be interesting to see reaction to the revised draft NNNPS and the doubtless further judicial reviews it will lead to,” he said.

The draft revised NNNPS also recognises the role that national networks projects can play in improving connectivity between towns and cities to boost growth, in line with the government’s wider ‘levelling up’ agenda. “Transport infrastructure is a catalyst and key driver of growth, and it is important that the planning and development of infrastructure fully considers the role it can play in delivering sustainable growth, how it can support local and regional development plans and the growth aspirations of local authority areas,” it states.

Once designated, the revised NNNPS will be reviewed by the secretary of state for transport roughly every five to 10 years “or earlier if necessary”, to ensure that it remains appropriate.

Owen reiterated his previous call for clearer national infrastructure planning policy, covering key business sectors and regularly updated, which he said was essential “if the UK is to speed up – and reduce the cost of – delivery of vital infrastructure projects”.

“Out-of-date NPSs only result in a lack of clarity for applicants, interested parties and all other participants in the planning process, leading to more complex examinations, increased costs, legal challenges and delays in project delivery,” he said. “The NSIPs regime must have a strong national planning policy backbone in order to be effective”.

The public consultation on the draft revised NNNPS will close on 6 June 2023, after which the government will issue its response to the consultation and present revised proposals for parliamentary approval.

The DfT said that, while the consultation and review are underway, the current  NNNPS “remains relevant government policy” for the purposes of the 2008 Planning Act and decisions on applications for DCOs for NSIPs. The draft revised NNNPS also sets out clear transitional arrangements to ensure certainty of policy change and effect.

The consultation is part of the government’s wider plan to overhaul the planning process for NSIPs and is “a real opportunity to engage with and influence national networks planning policy”, Owen said.

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