UK port projects face legal risk over emissions without government action

Robbie Owen and Matthew Fox of Pinsent Masons said that a failure to factor ship emissions into the environment impact assessments undertaken for major port projects could expose those projects to delay if it spurs a judicial review challenge.

This risk arises as a result of a UK Supreme Court ruling in the so-called ‘Finch’ case last year, he said.

Owen highlighted the issue in evidence he gave to the UK parliament’s Transport Committee, which has been examining the UK government's proposals to revise the national policy statement (NPS) for ports. The Committee published a report from its inquiry earlier this month.

Owen said: “Following the Supreme Court decision in the Finch case and subsequent judicial consideration of the same issue in the West Cumbrian Mining and some oilfield cases, we do not think it is correct, legally, to say that a decision-maker does not need to consider – those are the words used in the proposed revised NPS – the impact of a new port development on greenhouse gas emissions from ships transiting to and from the port. That needs to be revised.”

Fox added: “The main point those court judgments make is that such information, if able to be ascertained, does need to be assessed in an environmental statement and so taken into account in making a decision, but how much weight that is to be applied to the identified emissions is a matter of planning judgement.”

Owen said: “Given this, something the NPS should do is say how much weight should be given to greenhouse gas emissions arising from vessel movements in decision-making.”

Fox added: “Importantly, the NPS should also give guidance on how those emissions should technically be assessed through the environmental impact assessment process, or make reference to future guidance to be published by the Department, to avoid that question itself also becoming a matter of judicial review.”

In its report, the Transport Committee called on the government to “undertake a thorough assessment of the implications of the Finch judgment” for the NPS for ports – and to apply any necessary amendments so that the policy is “legally robust and fit for purpose in reducing the potential for judicial review”.

It added: “Clear guidance must be inserted in the revised NPS on the implications of the ruling, and on how emissions should be assessed for the purposes of environmental impact assessments.”

NPSs are documents which set out government policy that must be considered when determining applications for development consent for ‘nationally significant infrastructure projects’ (NSIPs) under the Planning Act 2008 regime. There are different NPSs in operation to reflect the different types of infrastructure that might be developed, such as energy, transport, water, waste water and hazardous waste infrastructure projects.

The NPS for ports also contains policy that applies to port development projects that are not NSIPs and so are instead consented by the Marine Management Organisation and local planning authorities. The NPS has been in effect since 2012 but is currently under review. Accordingly, in June the government published its draft revised NPS for ports. It is this document that Owen – and the Transport Committee – believe needs to be further revised.

The Committee said in its report: "We welcome the revision of the national policy statement for ports and the government’s intention to review NPSs more regularly in future to ensure they remain fit for purpose. We note stakeholders’ broad approval for the direction of travel set out in the draft revised document and the support it will provide to development in the sector.”

However, it went on to make a series of recommendations for further revisions, including calling for port infrastructure projects to be given ‘critical national priority’ (CNP) status within the planning system – an idea originally put forward by Owen in written submissions to the Committee.

Where CNP status applies to a port infrastructure project, it is more likely to obtain development consent. This is because that status confers a strong presumption in favour of the development – a presumption that will not generally be overridden by factors weighing against consent being granted unless disproportionate harm would arise from the development going ahead. 

In his evidence to the committee, Owen said: “For three or four years we have seen how critical national priority status has worked for low-carbon energy projects. In a number of [development consent order] decisions, the critical national priority of the project has been weighed in the planning balance by the decision-maker. It means that the need for and benefits of the project weigh more heavily against the [local] impacts. That has been shown to work in relation to, for example, offshore wind farms and solar developments. I very much support that being rolled out to ports, both for their benefit and for their protection.”

Owen’s evidence to the Committee included submissions on the need for further streamlining of the planning process. The Committee said in its report: “We heard that the planning process for NSIPs was another tool which could be used to achieve streamlining of regulation. Robbie Owen noted that one of the founding principles of the DCO [development consent order] process was that ‘the consent should be as much of a one-stop shop as possible’. He told us that the draft revised Ports NPS could be clearer in encouraging key agencies like the Environment Agency, the Marine Management Organisation, Natural England and others to work with the port developer, […] to make the one-stop shop vision more of a reality than it is at the moment.”

The Transport Committee noted that the DCO process is meant to streamline the planning approval process for nationally significant infrastructure. To achieve this and to reduce duplication of regulatory burdens, it called on the government to update the NPS for ports so that it contains similar provisions on deemed marine licences to those in the NPS for renewable energy infrastructure.