938: Government wins National Policy Statement challenge, and the new Innovation Fund
Today’s entry reports on a legal challenge relating to a National Policy Statement, and the government’s new fund for local authorities.
TAN loses again
Transport Action Network has lost its legal challenge to a decision by the Secretary of State to not suspend the National Networks National Policy Statement (NN NPS) while it is being reviewed.
Following an announcement in the Transport Decarbonisation Plan (TDP) that the NN NPS would be reviewed, the Secretary of State then took the decision not to suspend wholly or partly the existing NN NPS. The Planning Act 2008 anticipates scenarios where an NPS is reviewed (under section 6), but not suspended (under section 11).
The judgment includes the advice from civil servants on whether to suspend the NPS in whole or in part whilst the review was being undertaken:
‘Scheme sponsors and private sector developers value long-term certainty within the planning regime and NPSs supports this. Keeping the current NNNPS in place during the review period will mitigate market chilling as a result of developer hesitancy (or conscious desire to fall under the new NPS) and supports a steady flow of DCO applications.’
The first ground of challenge was that the Secretary of State had closed his mind to suspension, and the decision was therefore pre-determined. The TDP, published on 14 July 2021, used the phrase ‘whilst the NPS continues to have effect…’ Advice that the NN NPS should not be suspended was received on 15 July 2021.
The court considers it clear that the TDP was not itself a decision about suspension and emphasises the distinction between ‘pre-determination’ and ‘predisposition’.
The second ground related to whether the Secretary of State had properly considered the conditions for suspension (ie, whether there was a change in circumstances; that change was not anticipated at the time of the NPS being designated or when it was last reviewed; and that change would have made part or all of the NPS ‘materially different’).
The court agreed with the Secretary of State in finding it was obvious all of the conditions were in fact considered. One wonders why this ground was contested given the power to suspend an NPS under section 11 of the Planning Act 2008 is permissive in any event.
The third ground of challenge contended that the Secretary of State was wrong to consider that ‘it would be lawful for planning inspectors to consider revised traffic forecasts or policy evolution (including in relation to emissions targets) within the framework of the current NNNPS.’ The judge disagreed – the NPS did not prevent decisions from being made in a manner consistent with Net Zero – an unsurprising result given the number of positive energy decisions whilst the energy NPS suite is under ongoing review.
The fourth ground of challenge contended that there was an error because officials advised that ‘the TDP also provides a new policy framework for stable road emissions in the medium term, which is underpinned by the sixth carbon budget’. The Secretary of State accepted this was an error, noting that the TDP alludes to a trajectory for reductions in emissions from vehicles but contended this error was not material to the decision. The court agreed.
The fifth ground of challenge contended that the statement of need in the NPS should have been partially suspended. The court disagreed, it was perfectly lawful to consider that the statement of need was so bound up with the rest of the document such that it could not be meaningfully disaggregated. In addition, as set out above, the NPS did not prevent decisions being made in a manner compatible with the carbon reduction targets.
Innovation and Capacity Fund
Meanwhile, the government has requested expressions of interest for a new fund for local authorities. The aim of the fund is ‘to consider ways in which [a local authority’s] role in the NSIP process could be improved or done differently to help drive better, greener and faster delivery of NSIP projects’ (yes, ‘NSIP projects’ is jarring – a case of RAS syndrome).
The government sets out a series of objectives which a local authority should address if wants some dosh, including:
- drive innovations which could support greener NSIP projects;
- develop measures that enable better community and/ or LA engagement at pre-application;
- improved adequacy of consultation; and
- managing the demands of multiple NSIP projects in the same locality, especially when these overlap temporally, and or, spatially.
Grants of up to £100,000 will be issued. Whilst this will no doubt be welcomed by local authorities in DCO pinch points, particularly in the South East of England, it will be interesting to see how the government intends to control and ringfence these funds so that they are not used to object to or impede DCO projects – including those supported by government or national policy.
ClientEarth, Friends of the Earth and Good Law Project have been granted permission by the High Court to proceed with challenging the Net Zero Strategy.
The folks at Aquind have confirmed their legal challenge to the curious refusal of their interconnector project.