Skip to main content
Home / News and Insights / Blogs / Planning Act 2008 / 898: BEIS consults on energy NPS appraisal and redetermination news

Today’s entry reports on steps being taken on the review of the energy National Policy Statements.

National Policy Statements are one of the main building blocks of the Planning Act 2008 regime, setting out as they do what infrastructure is needed, what applicants should consider and assess in their applications, and what decision-makers should take into account in deciding applications.

A suite of six NPSs relating to energy was ‘designated’ – Planning Act speak for adopted – on 19 July 2011, getting on for 10 years ago. The original impact assessments accompanying the planning bill suggested they ought to be reviewed every five years.

After being nudged by a judicial review challenge launched by the Good Law Project last year, the government finally committed to reviewing them in the Energy White Paper, by the end of this year. That is a very challenging timetable, given that the original NPSs were published for consultation in November 2009 and took 20 months to be designated from that point, and we aren’t at that stage with these ones yet as April comes to a close.

According to section 6(6) of the Planning Act 2008, before amending an NPS, the government must carry out an appraisal of sustainability of the ‘policy set out in the proposed amendment’. The first indications of progress on that front are now in the public domain, with a blink-or-you’ll-miss-it two week consultation requesting that statutory and relevant technical experts provide input on the scope of the appraisal of sustainability and habitats regulation assessment by 6 May 2021. For details see here.

I skimmed the documentation for any evidence of what new NPSs there might be, what they might cover (eg hitherto unaddressed technologies such as solar power) and what they might contain (eg preferring low over high carbon energy rather than being technology-neutral) but it is shtoom on those points.

There are some lovely maps though, showing Natura 2000 sites, ancient woodland, World Heritage Sites, and all manner of environmental and heritage designations, so that’s nice.

The Good Law Project had intended to maintain its challenge on the ground that the NPSs should be suspended in the meantime but has decided not to pursue that point. Trying to get NPSs reviewed is all the rage, with challenges forthcoming on reviewing the national networks and airports NPSs as well from the Transport Action Network and Good Law Project respectively.

Redetermination news

In an unusual move, the government has issued a consultation on the Norfolk Boreas offshore windfarm while ignoring the fact that the decision deadline has been and gone and a new one has not yet been set. The consultation letter can be found here. The consultation ends on 28 May 2021, although time extensions are offered if good reasons are given.

The letter says that there will be a separate consultation on the quashing of Boreas’ sister project Vanguard, the DCO for which was quashed in February. Indeed, the first stage of that has also just been issued and can be found here. The consultation ends on 20 May 2021. It asks for comments on the proposed redetermination procedure, which essentially consists of assessing the harm that may be caused from the substation belonging to both projects, given the evidence now available from both examinations and anything subsequently submitted. One of the questions is whether to reopen the examination to consider that point. Yikes.

No such letter has yet emerged for the also quashed Manston DCO.

Finally there are press reports that the A38 Derby Junctions DCO is also to be quashed following the Secretary of State for Transport’s decision not to defend a judicial review challenge to it, on climate change grounds.

Related Articles