983: What is the National Infrastructure Commission (NIC) up to?

Today’s entry looks at the National Infrastructure Commission’s (NIC) remit for recommending planning reforms, and the Office of Environmental Protection’s first ever intervention in a court case.

An action plan for the action plan

The National Infrastructure Commission (NIC) has been directed by the Treasury to review ‘the current approach to National Policy Statements (NPSs) and identify how the planning system could create greater certainty for infrastructure investors, developers, and local communities.’ This is intended to supplement the good work from the folks at DLUHC who are working on an NSIP Action Plan, due to be published shortly. The impetus for the review by the NIC is once again that the system is slowing, quoting the figure that the time for granting DCOs is taking 65% longer.

The review is to look at the short term (18 months), and the long term (five years) but the focus is very much on NPSs, including ‘actions the government could take to ensure NPSs are reviewed more regularly and how the process could be improved’. The terms of reference set out:

‘Where NPSs do not have effect (under s.105 of the Planning Act) or where NPSs have been designated without review for a long period, time in examinations can be spent debating the need case of a particular project and infrastructure in order to agree the policy framework for that application.’

I think this is probably broadly right, but query what projects are being referenced here and given the fixed examination period does it actually slow anything down? The first 10 projects decided under section 105 of the Planning Act (ie, the section which applies where no National Policy Statement has effect) were not ‘true’ s105 projects on the basis that the NPSs were being designated during their application / decision cycles. In almost all of them, the Secretary of State nods towards the proto-NPSs. Since then, we have had Sizewell C (decided under s105 because of a lapsed NPS), Manston Airport, Wheelaborator (for fairly bizarre and slightly dubious grounds), Cleve Hill Solar Park, and Little Crow Solar Park (both solar decisions nod to the draft energy NPSs). There are also forthcoming projects which, unless action is taken, will also be decided under s105. Looking at these projects in particular may assist the NIC in identifying that the emphasis should potentially lie ‘where NPS have been designated without review for a long period’ rather than ‘where NPS do not have effect’. And rather than debates on policy during examinations, one of the effects we have seen is a greater level of legal challenge of decisions.

One particular aspect of the remit of the NIC is how ‘strategic statements could provide more confidence in likely planning system outcomes’. What might this look like? Here are a couple of humble suggestions.

First, there is the question of site-specific NPSs (like the Airports NPS or EN-6, the nuclear NPS) vs. generic NPSs (like the Ports NPS). There are plainly advantages of each (establishing a relatively stronger principle of development on a site vs. allowing a more dynamic set of developments to come forward). Strategic statements could help in the latter case: they could set out a set of sites/routes the government endorses and be given weight by and cross-referenced in generic NPSs on the assumption that those ‘strategic statements’ would be updated with more frequency. That would allow government to prioritise suitable sites projects over time more dynamically, whilst reducing the pressure to set all of them out in one go. The downside is that those strategic statements may then be the subject of legal challenge so may require a concrete legislative framework to set out relevant considerations, and processes to reduce that risk.

Second, it might also be helpful to give some more generic ‘strategic statements’ further weight in the overall planning balance even where they do not contain site-specific information. This is already being carried out in various decision letters, but it would be helpful for NPSs to speak to, and endorse the weight given by, policies like the British Energy Security Strategy, and the Transport Decarbonisation Plan. The concept of ‘National Development Management Policies’ in the Levelling Up and Regeneration Bill provides a useful template in this context.

Interestingly, The Times report on the NIC review includes a nugget which isn’t in the press release or the terms of reference:

‘Officials insist that this will not remove the ability of locals to object but will reduce the number of opportunities and the need to continually seek approval for tweaks to the plan.’

This seems to be a nod to the findings of the House of Lords’ Built Environment Committee in the last blog entry (see paragraphs 15-16).

Like the Growth Plan before it, there is seemingly increasing concern about the levels of consultation required for major projects. Whether you agree or disagree, what would reform look like? Well, one idea is to tighten up the language of the pre-application guidance: I’m sure we’ve all grappled with, and advised on, whether a change is so significant that re-consultation is required and what form the consultation should take. The other aspect is further defining pre-application engagement. No one size fits all, but the practice by some toward pushing cumbersome and detailed engagement on application documents (not consultation documents, not the Preliminary Environmental Information Report, but all assessments contained in a prospective application) before application submission is potentially an area where government could set expectations more clearly.

The terms of reference contain a bugbear of mine which is comparing the pre-NSIP timescales to the NSIP application timescales:

‘Prior to the NSIP system, major infrastructure projects took significantly more time to go through the planning process, for example Sizewell B nuclear power station took seven years to be consented. In comparison the Norfolk Boreas offshore wind farm, which was consented in 2021, took two and a half years from application submission to its Development Consent Order (DCO) being granted.’

As we’ve noted before, using the period from application submission to consent in the NSIP regime to the pre-NSIP regime is not a fair comparison: the purpose of the DCO regime was to front load. The Sizewell B permission was formally announced in 1980, with an application submitted in 1981 (ie, a site-specific pre-application period of one year), and the planning consent in 1986. By contrast, whilst the process from application submission to decision for the Norfolk Boreas took two and a half years, the pre-application period for Norfolk Boreas goes back to at least the grant of their lease by the Crown Estate in 2016, meaning even ignoring the work carried out prior to that milestone, the comparison may be overstating progress in start to end delivery insofar as planning consents are concerned. Don’t get me wrong, the NSIP regime is much preferable, but we have to start with identifying the problem properly.

Ironically, having given Boreas as an example of faster decision-making, it is actually one of two contributors to the 65% increase in application timescales mentioned earlier.

OMG, the OEP is going to the SC

The OEP has filed an application with the Supreme Court for permission to intervene in the appeal of R (Finch) v Surrey County Council, which is to be heard in June. You’ll recall that the case is about whether an environmental impact assessment which assesses the impact of greenhouse gas emissions needs to include the impacts resulting from the future combustion of oil produced by the new oil wells, or just the extraction from the oil wells. We covered how the Court of Appeal’s judgment was applied to a Cumbria coal mine here.

What is the OEP’s beef? We get a hint at it in their press release:

‘We are interested in this case because of the opportunity to clarify the law here to ensure proper decision-making that enhances environmental protection. We hope that the Supreme Court will take this opportunity, and will develop principles for determining the proper approach to the assessment of indirect effects under the EIA legislation.’

There were concerns about whether the OEP would be as robust as the European Commission was on these issues before our departure from the EU. Something tells me we’re about to find out.

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