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Home / News and Insights / Blogs / Planning Act 2008 / 924: Next NIA process launched, another NPS legal challenge and a new enactment

Today’s entry reports on the next National Infrastructure Assessment, the latest legal challenge to a National Policy Statement and the enactment of amendments to the Planning Act 2008.

National infrastructure assessment two

The National Infrastructure Commission (NIC) is embarking on its second National Infrastructure Assessment of the nation’s infrastructure needs. The first NIA was published in 2018 and set out what was needed to 2050; the second one is due to be finalised in 2023. It doesn’t say when it runs to, presumably it should be 2055 rather than 2050 but it looks like it is still to 2050.

Last month, the government updated the NIC’s charter and framework and issued a new ‘remit letter‘. The NIC originally had three objectives: to support sustainable economic growth across all regions of the UK (levelling up, you might say, before it was fashionable), improve competitiveness and improve quality of life. As noted in a previous blog, the government has added a fourth one: support climate resilience and the transition to net zero carbon emissions by 2050. That is the only change that has been made to the charter.

The framework has had further changes:

  • biodiversity net gain has been added as something the NIC should take into account in its recommendations;
  • a request that the NIC should explicitly mention when a recommendation applies to government or another relevant body (presumably this hasn’t been clear enough to date);
  • the government has taken upon itself to say why it doesn’t agree with the NIC where it doesn’t;
  • the chair’s term can be extended beyond 10 years to facilitate succession planning;
  • the Oversight Board is no longer responsible for remuneration (which falls to its chair alone) but is newly responsible for monitoring the NIC’s performance, which will also be reviewed by the Treasury once a year;
  • there are new sections on managing conflicts, Freedom of Information Act requests, procurement and data sharing; and
  • where an individual is referred to as ‘his or her’ that has been replaced with ‘their’.

The remit letter has increased the proportion of investment in infrastructure from 1.0-1.2% of GDP to 1.1-1.3%, and asks for specific studies.

The NIC has published a ‘Baseline Report‘ and call for evidence for the preparation of its second NIA. The report says there are nine key challenges:

  • digitalisation;
  • fast decarbonising of the electricity system;
  • major changes to heating of homes to decarbonise heat;
  • new hydrogen and carbon capture and storage networks;
  • good asset management to respond to the need for climate change adaptation (and address leaky pipes and potholes);
  • improved surface water management in response to increased flood risk;
  • a circular economy in the waste sector;
  • improved urban mobility and reduced congestion; and
  • a multimodal interurban transport strategy.

Challenges 2-4 are under the ‘reaching net zero’ strategic theme, 5-7 are under ‘climate resilience and the environment’ and eight and nine are under ‘supporting levelling up’.

Seventeen questions are posed in the call for evidence, summarised on pages 78-80, and the deadline for responses is 4 February 2022. I like the next steps timeline on page 74, which is essentially ‘publish this report now, do some stuff, publish the second NIA in the second half of 2023’.

Transport Action Network NPS legal challenge

The Transport Action Network (TAN), a campaign group formed in 2019 by Chris Todd and Rebecca Lush, has brought a judicial review of the government’s refusal to suspend the National Networks National Policy Statement while it is being reviewed. This has echoes of the Good Law Project doing the same for the energy National Policy Statements although it withdrew its challenge to both review and suspend once the government committed to review them. TAN previously unsuccessfully challenged the second Road Investment Strategy earlier this year.

The grounds of challenge and the government’s defence have been published, although not by TAN themselves but by the Thames Crossing Action Group. The challenge is on six grounds:

  • the Secretary of State is alleged to have predetermined not to suspend the NPS;
  • the decision not to suspend is alleged not to meet the relevant legal tests in section 11 of the Planning Act 2008;
  • it is claimed planning inspectors cannot use up to date forecasts in their recommendations while the NPS remained in force;
  • the decision not to suspend is alleged to be based on a misunderstanding of transport policy (of keeping road emissions stable);
  • the SoS is alleged to be irrational in not considering the suspension of parts of the NPS; and
  • the decision not to suspend took ‘private sector developers’ into account when National Highways is the only promoter of highway DCOs.

The Secretary of State has robustly rejected all the above grounds in his defence.

Environment Act 2021

The Environment Act 2021 received royal assent on 9 November and the full text was published a few days later. It can be found here.

Section 99 of the Act brings in Schedule 15, which in turn amends sections 37, 103-105, 120 and 232 of the Planning Act 2008 and inserts a new schedule 2A into it. This will require certain nationally significant infrastructure projects to meet the objective of increasing biodiversity by at least 10% of the pre-development value of the site, calculated by reference to the biodiversity metric.

Note that these provisions have not yet been brought into force; there are likely to be surrounding regulations with more detail. One commencement order has been implemented so far, which created the Office of Environmental Protection on 17 November.

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