1022: Lots of infrastructure-related budget announcements plus latest DCO court judgment

Today’s entry reports on the announcements and publications on budget day and a high court judgment on a challenge to the A57 highway DCO.

Budget day announcements

Final revised energy National Policy Statements

Final versions of the five energy National Policy Statements EN-1 to EN-5 have been published (the sixth one on nuclear energy is not currently being revised), together with a response to the consultation on them, here. Here are links:

• EN-1
• EN-2
• EN-3
• EN-4
• EN-5

You may recall that the consultation was quite limited, given that there had already been a wider consultation on previous drafts. It basically covered the higher need status (‘critical national priority’ – CNP) being given to offshore wind and its onshore electricity networks; the introduction of ‘Offshore Wind Environmental Standards’ (OWES); use of early development of habitat compensation and multi-project strategic compensation; defence and civil aviation interests; greater emphasis on strategic planning; and that the starting point should be that electricity lines outside protected landscapes can be carried by pylons.

The big change is that consultees suggested that the definition of CNP should be extended to all net zero technologies, and the government has agreed; it now covers:

‘all onshore and offshore generation that does not involve fossil fuel combustion (that is, renewable generation, including anaerobic digestion and other plants that convert residual waste into energy, including combustion, provided they meet existing definitions of low carbon; and nuclear generation), as well as natural gas fired generation which is carbon capture ready; ; for electricity grid infrastructure, all power lines in scope of EN-5 including network reinforcement and upgrade works, and associated infrastructure such as substations … for other energy infrastructure, fuels, pipelines and storage infrastructure, which fits within the normal definition of “low carbon”, such as hydrogen distribution, and carbon dioxide distribution; and for energy infrastructure which is directed into the NSIP regime under section 35 of the Planning Act 2008, and fit within the normal definition of “low carbon”, such as interconnectors, MultiPurpose Interconnectors, or ‘bootstraps’ to support the onshore network which are routed offshore. Lifetime extensions of nationally significant low-carbon infrastructure and repowering of projects.’

Having called myself for more infrastructure to be CNP, there is now the opposite risk, to quote The Incredibles, that if ‘everyone is super, no one is’. Now, there is hardly anything that isn’t CNP. Surely ‘carbon capture ready’ seems rather weak for gas-powered stations, for example, they ought to have their carbon captured from the get-go to be CNP.

OWES are to stay and will be consulted upon in due course, as are early compensation and strategic compensation. Greater engagement in aviation and defence interests is welcomed, but developers will still have to pay fully for radar mitigation as they are causing the problem (the ‘agent of change’ principle).

The last proposal about pylons was the most controversial; despite that, the government are holding their ground.

These have to go through a Parliamentary stage before they are ‘designated’ and replace the existing NPSs, which still rule for the moment.

Further infrastructure reforms

The government has announced some further reforms to the DCO regime in addition to the Action Plan currently under consideration, here.

Fast-track projects will have a two-month pre-examination period of three to four months currently, reducing examinations from six to four months and recommendation periods from three to two months. We knew most of that, but possibly not all, already.

The early adopter programme is to be extended. There will be a consultation kicking off a new large, small, and advanced nuclear NPS on the policy approach ‘shortly’, but that suggests some time before an actual draft NPS.

There will be cost recovery for NSIP applications – not sure why this will speed them up, it may put some off altogether. There will be a central repository of NSIP order limits (here, but I don’t think it’s there yet). The government will explore how to ensure infrastructure is not frustrated by inappropriate legal challenge. I wonder what they will decide is ‘inappropriate’.

A ministerial Star Chamber is to be created to drive infrastructure delivery reporting to the Chancellor or Prime Minister. The original Star Chamber could impose any penalty other than the death penalty; I wonder how this one will behave. Ministers in the stocks for late decision-making?

Longer term, the Planning Act 2008 thresholds will be reviewed (railway and highway in particular) as will the Transport and Works Act and Highways Act consenting regimes. There will be a review of ‘the way consultation works’ to make sure it is effective and proportionate. There will be further consideration of post-consent changes.

Response to NIC report

The National Infrastructure Commission was asked to look at better National Policy Statements and reported in April, here. It contained six recommendations, with some interim remarks sprinkled amongst them. The government has responded here.

The first recommendation was to legislate for five-yearly reviews of NPSs. There is a long answer but I don’t see a commitment to do this other than possibly amend the triggers for when a review is appropriate.

Bring back onshore wind. The government considers the recent changes to the NPPF to be sufficient. They aren’t!

The second recommendation was to introduce modular updates to NPSs to reflect legislative changes. The government will commission a review of the NPS review process, very meta.

Defra to introduce a data-sharing platform. There will be one for offshore wind, but not otherwise.

Introduce a framework of direct benefits. A recommended level of funding will be introduced.

Introduce a central coordination mechanism. See above re the Star Chamber.

Publish performance measures for statutory consultees getting cost recovery. Maybe, considering consultation responses.

So although the government claims to be adopting most of the recommendations, I’m not sure they are.

Court judgment

On 17 November, judgment was given on a challenge to the grant of the A57 Link Roads DCO on 16 November 2022, worth noting it has taken a year and a day to get to this stage.

The judgment can be found here but here is a summary. There’s some useful stuff on alternatives, a fairly active issue at the moment.

The decision was challenged by the local chapter of the Campaign to Protect Rural England on two grounds:

• a failure to assess cumulative carbon impacts; and
• the Secretary of State failed personally to consider alternatives that caused less harm to the Green Belt.

The judgment does not deal with the first ground because it is essentially the same as that which is to be considered by the Court of Appeal on the three A47 DCOs in Norfolk, so we’ll have to wait for that decision.

On ‘less harm’ alternatives, I note in passing that they were essentially not to build the project rather than running along a different route since either end of the link road was in the Green Belt.

CPRE’s main case was that the Secretary of State treated alternatives as a material consideration, and National Highways, the project promoter, said there weren’t any. The judge rejected this characterisation and said NH justified the project on its own merits rather than by reference to alternatives. She decided that CPRE were relying on particular sentences and phrases in an ‘over-legalisation’ of the planning process.

CPRE’s alternative case was that alternatives were a mandatory material consideration and that it was therefore unlawful not to deal with them. The judge said that mandatory material considerations are either expressed or implied in legislation or ‘so obviously material’ as to require consideration.

The judge said that neither the National Policy Statement nor Green Belt policy require an assessment of alternatives, meaning that they would have to fall under the ‘obviously material’ category. Not surprisingly, she refers to the A303 Stonehenge judgment (decided well before this one), which covered this in some detail. I quote the main principle the judge mentioned:

‘Where there are clear planning objections to development upon a particular site then “it may well be relevant and indeed necessary” to consider whether there is a more appropriate site elsewhere. This is particularly so where the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it. Examples of this second situation may include infrastructure projects of national importance.’

The judge listed the seven reasons CPRE gave for alternatives being ‘obviously material’ and then rejected each one, adding that the Stonehenge situation was ‘wholly exceptional’ for good measure.