992: National Infrastructure Commission recommends NPS shake-up and final Water NPS published

This week’s blog covers the report of the National Infrastructure Commission into National Policy Statements and the publication of the final Water Resources Infrastructure National Policy Statement.

NIC report

The National Infrastructure Commission (NIC) was asked by the Treasury as recently as 10 February 2023 to look into the effectiveness of National Policy Statements, its terms of reference can be found here.

On 18 April 2023, less than 10 weeks later, the NIC published its report, which contained six recommendations. The report can be found here, along with a nice picture of a T pylon under construction on the front. Here is an analysis.

The report is more radical than one might expect, and just reading the recommendations doesn’t reveal this fully. A bit of a two-tier system is proposed, with different types of projects getting more good stuff than other projects.

The causes of delay are analysed as:

• the system becoming more adversarial instead of inquisitorial; PINS having to mediate instead of deciding if applications meet clear tests, partly because of…
• out of date NPSs;
• unclear tests (not to be confused with nuclear tests) in guidance (apparently, ‘government analysis highlights that the biggest delays are at pre-application stage’ – funny that they aren’t at decision stage); and
• systemic inefficiencies eg reinventing the wheel on habitat compensation.

On having clearer NPSs, they give as an example the ‘strong starting presumption’ that electric lines should be overhead except across protected landscapes. The report sets out four principles for NPSs which it then combines into its first recommendation. P1: NPSs should avoid generalised language; P2: there should be more reference to spatial planning where it exists, with a need linked to that, consider introducing this for energy generation; P3: consider revising NSIP thresholds when reviewing NPSs, bring back onshore wind, and treat s35 projects as NSIPs; P4: NPSs should set out clear timelines and boundaries for consultation (although I thought the regulations already did this).

Recommendation 1 combines these but also says that at most five-yearly reviews of the energy, water resources and national networks NPSs should be statutory, and there should be triggers for reviews of the others (eg significant policy changes).

Recommendation 2 says that ‘modular changes’ to NPSs should be able to happen (like supplementary planning guidance?), linked to primary or secondary legislation. Is this feasible? The report says that these ‘modules’ should be included in relevant draft legislation, which would be a pretty novel step.

On p13 there is a little barb: projects should show how they are compatible with carbon commitments not just say that they are. A strange sentence on page 21, which possibly shows a gap in understanding, reads: ‘if it is not possible for developments to avoid, mitigate, or compensate, they offset their impacts by replacing losses either on or offsite.’ Surely that is compensation?

Data gathering and designing and agreeing on mitigations for environmental assessments are time-consuming, and the report goes as far as suggesting that the government should do these itself for wind, energy transmission, and water resources projects; for others, they should host a data-sharing platform and library of mitigations. The Netherlands is cited as an example where the government conducts EIA. This is the basis of recommendation three, although the recommendation doesn’t mention the government doing the EIA part.

The report is concerned about the lack of local benefits (pain without the gain) for many types of projects, such as electric lines (but not necessarily roads or reservoirs, which can have local benefits). Recommendation 4 suggests increasing bills to pay for local benefits and the creation of a national government framework of potential benefits by the end of the year, which it suggests should become compulsory (in the text, not in the recommendation). I am glad this is not linked to getting permission (so it doesn’t look like buying permission), and it might reduce opposition to projects. RES, Octopus, and EirGrid (in Ireland) are given as examples of local discounts for proximity to projects.

The final two recommendations are in a section headed ‘accountability’. Recommendation 5 suggests a central coordination system for learning lessons across sectors with measurable targets for reducing consenting times. That is perhaps something DLUHC could do pretty much straight away.

The final recommendation might create a ransom situation: it says that a DCO application should not be accepted for examination unless service level agreements have been agreed with statutory consultees. Unless carefully handled, a statutory consultee that didn’t like a project could scupper it by not agreeing to a service level agreement. There is more useful text that states that consultees’ roles are not currently aligned with consenting to and delivering NSIPs, and NPSs should guide them to do this. That sounds like a good idea, they don’t at the moment.

We shall see if the government takes up any of these suggestions, but I think they are generally good ideas.

Water resources infrastructure NPS

A mere four years and five months after the draft water resources NPS was published for consultation, the final draft has been laid before Parliament! Well, there were 45 responses to read through. This covers reservoirs, transfer pipelines between water companies’ areas, and desalination plants, but only very big examples of each. It does mean that the DLUHC Action Plan was only slightly wrong when it pledged that it would come out in the first quarter of this year.

I have a comparison and can send you one if you email me, but here are some highlights:

• Paragraph 1.1.9 confirms that NPSs trump local policy for NSIPs in case of conflict;
• in 1.4.5 need is tied to being in a company’s Water Resources Management Plan, as before, although those are to derive from the Environment Agency’s National Framework; published in 2020 (ie since the draft NPS, so referred to quite a lot now);
• in 2.2.3 need is quantified as 3,435 million litres per day of extra capacity by 2050. Reassuringly, WRMPs’ declare a total need of 4,000 Ml/d. 400Ml/d of the need is attributable to climate change, 1,040 Ml/d to population growth, and 720 Ml/d is for ‘unsustainable abstractions’ and environmental improvements;
• 2.3.2: need can be met by reducing demand from 143 to 110 l/d per person (isn’t that actually reducing the need?), reducing leaks and providing more infrastructure, about 1 / 3 each;
• 2.5.11: applications for DCOs should submit a statement of compliance with the WRMP;
• 3.2.9: use of Rochdale envelope encouraged where project details not yet finalised;
• Biodiversity Net Gain gets new paragraphs (4.3.20-22), but refers to the as yet unpublished biodiversity gain statement; wider ‘environmental net gain’ is also covered (3.4.3);
• 3.7.6: new text on climate change resilience assessment, and on nearby MoD sites (3.11.4). Too late to include cybersecurity in the security section, given this story?
• 4.1.5: the government has set 13 legally binding targets for England – have they? That’s news to me;
• 4.2.7: stronger air quality obligations;
• 4.4.3: ties NPS to sixth carbon budget, implying it will need to be updated for the next one; and
• there is a fair amount of new text in the flood defence and, perhaps surprisingly, traffic and transport sections.

The NPS will now sit around for a few weeks (at least three, if no vote is taken in the House of Commons, potentially sooner if one is) before being formally ‘designated’, ie brought into force.

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