939: NIC lukewarm on progress, a case on ‘in accordance’ and advice update

Angus Walker Partner

This week the National Infrastructure Commission issued its fifth annual monitoring report. Whereas the previous four had the title ‘Annual Monitoring Report [year]’, this one is called ‘Infrastructure Progress Review 2022’, which may or may not be significant. Here are links to them all:

The NIC is pleased that the government had pledged to increase the proportion of GDP to be spent on economic infrastructure from 1.1% to 1.3% from 2025. However its general tone is that the government is falling behind meeting its commitments, particularly on climate change and now also levelling up (even though the levelling up white paper was only issued last month).

It says it has ten actions for the government to ‘get back on track’ during 2022 (although I make it 11…). It also sets out what it is going to do itself (sometimes).

It gives RAG (red, amber, green) ratings to progress in each sector: broadband and electricity are the only ones to get green across the board. Worst are urban transport and regulation, which get no greens.

On comms, the NIC gives the government an action to set out an assessment of the country’s future wireless connectivity needs. The NIC will consider how the digital transformation of infrastructure could deliver higher quality, lower cost, infrastructure services. Those both sound a bit vague.

There are two actions for energy: improve energy efficiency schemes so that as many homes in England as possible achieve an Energy Performance Certificate rating of C or better by 2035; and publish a plan to achieve at least 5 million tonnes of CO2 removals by 2030 (that’s direct air capture and the like rather than capturing at source).

The first action is all the more important if we are to reduce dependence on energy from dodgy places. Heat and buildings have only reduced their emissions from 105 MtCO2 to 90 in 30 years, ie 14%, compared with 75% in the power sector.

For its part, the NIC will consider how a decarbonised, secure and flexible electricity system can be achieved by 2035 at low cost, will identify a viable pathway for heat decarbonisation and will assess the hydrogen and carbon capture and storage required across the economy and policy and funding frameworks to deliver them. Possibly telling use of ‘economy’ rather than ‘country’.

On flood resilience, the government should set out a long term measurable objective for what flood resilience policy in England is trying to achieve. The NIC will consider opportunities to maximise short-term opportunities and improve long term planning, funding and governance for surface water management.

On water, the government should strengthen and progress plans for reducing per capita water usage to 110 litres per person per day by 2050 (it’s currently around 135). The NIC hasn’t given itself a task (worthy of a blue box in the report, at least).

On waste, the government should increase recycling rates through extended producer responsibility, deposit return schemes, recycling consistency and bans on certain plastics. The NIC will examine the role of the waste sector in enabling the move to a circular economy.

There are three actions on transport: move away from competitive bidding for multiple, centrally controlled, short term funding pots; support local authorities in developing plans for major urban transport schemes (including a mass transit system for West Yorkshire) and initiate a step change in charge points to enable the end of new diesel and petrol car an van sales by 2030. Nothing highlighted for the NIC on transport.

Finally on cross-cutting issues, the government should complete a review of regulators’ statutory duties and set out improvements to resilience standards and stress testing. The NIC will consider how asset management can support resilience.

The tone of the whole report is that the government has set good targets but is not currently on the right trajectory to achieve them so far. That other sectors are falling behind more may mean less focus on electricity generation.

Case on ‘in accordance’

Although not to do with a Development Consent Order, the case of Swire v Canterbury City Council will be of some assistance in interpreting a common DCO phrase ‘in accordance with’. The claimant had issued no fewer than seven judicial review challenges of an outline planning permission (OPP) granted to Redrow Homes near where she lived (on top of two earlier unsuccessful JRs); this case principally dealt with the first two.

Two conditions attached to the OPP were involved, one of which said that the development had to be carried out ‘in accordance with’ six plans, and the other of which said that it had to be carried out ‘substantially in accordance with’ a masterplan. In the view of the judge, because something could be ‘strictly’ in accordance with a plan, without such a qualification that wouldn’t be as strong (see paragraph 43); it is also a matter of planning judgment as to whether accordance has been achieved (para 44). The judge didn’t opine on whether ‘substantially in accordance’ was weaker than ‘in accordance’ as the claimants alleged.

The case also touched on the concept of environmental impact assessment (EIA) of ‘subsequent applications’, which can also be undertaken for DCOs. Unfortunately the issue wasn’t explored beyond concluding that the subsequent application did not need further EIA. The Northampton Gateway DCO does have a requirement on this, but does not allow the subsequent application to have any materially new or materially different effects – I’d like to see one that did, which is contemplated by the EIA regulations.

Updated advice

Finally, the Planning Inspectorate has updated its advice on electronic applications and hyperlinks in documents. On the former, it prefers electronic file transfer methods to be used rather than physical media such as USB sticks or CD-ROMs. On the latter, having previously been banned outright, hyperlinks can be used if they are to ‘verifiable websites’. The examples given of such things are ones that end in .gov.uk (so examination documents would be OK), and sites for chartered professional institutes such as IEMA and RTPI. Advice should be sought from PINS if unsure about whether a website qualifies.

See paragraphs 3.1 and 8.1 in advice note 6 and paragraph 5.1 in advice note 8.4.

It would be good if a system could be developed to allow documents that form part of a single deadline submission to have hyperlinks to each other, this is not currently possible because the destination addresses of the documents are not known at the time of their submission. It also means that applicant-created document references have to be used rather than examination library references, which would be more helpful.