The wheels could soon fall off the planning regime for key infrastructure projects unless urgent changes are made, say Robbie Owen and Jan Bessell of Pinsent Masons.
The nationally significant infrastructure projects (NSIPs) planning regime in England and Wales is in danger of losing its mojo. We propose that government should create one overarching 'super' National Policy Statement (NPS), because the storm clouds are gathering over the rather beleaguered and rapidly ageing suite of NPSs that underpin the NSIPs regime. Judicial reviews are on the increase. There is a growing feeling that unless something is done, the wheels could soon begin to fall off the regime that has been working well since 2010.
Background
In 2007, the Labour government set out its vision for a new system of planning for major infrastructure. In its white paper it recognised that “national policy is not sufficiently clear and responsive” and proposed a series of NPSs to provide the government’s objectives for the development of nationally significant infrastructure in a particular sector and how this could be achieved in a way which delivered sustainable development. The legal significance of NPSs was then set in stone by the Planning Act 2008 as well as the procedures for their designation and review.
Nine NPSs were designated within five years of the 2008 Act. However, that initial rush has not been followed through, with only three new NPSs since then. None of the NPSs has yet completed a formal reviewed despite the original intention to ensure that NPSs remain up to date by being reviewed at least every five years.
The problem
So, the documents that form a cornerstone of the 2008 act are inconsistent and also now quite aged. They are increasingly generating challenges in court – leading to uncertainty for all, cost and delay. They have increasingly been developed in a piecemeal way over time with no overarching consistent guiding principles, standards and policy, or assessment criteria and decision-making tests. This has led to the inconsistent assessment, decision-making and treatment of issues such as climate change adaptability. Neither do the NPSs account for many changes in government policy – not least on climate change and net zero, or technological innovations such as solar, energy storage and hydrogen power at scale.
This is leaving infrastructure project promoters facing the problem NPSs were specifically designed to avoid - uncertainty as to whether there is clear government policy support and an established national need for their projects. This will only continue to deteriorate as further judicial reviews are doubtless brought - causing uncertainty, cost, risk and delay to projects and undermining the nation's economic recovery and 'levelling up'.
There is now the strong impression that government has put most NPS issues onto the ‘too difficult’ pile. Whitehall now seems almost institutionally incapable of delivering them.
The opportunity
So, it is now imperative that the government considers the future of the NPSs. It is our proposal that it should look to harness the National Infrastructure Commission's valuable work in its National Infrastructure Assessment, demonstrating using hard evidence the ‘need’ for infrastructure, and the intended five-yearly cycle of national infrastructure assessments and resulting national infrastructure strategies.
Our proposal
Our proposal would provide consistency and certainty at a national level for all nationally significant infrastructure. It can be simply illustrated:
This new approach would allow NPSs, the cornerstone of the Planning Act 2008 regime, to be updated holistically - retaining certainty, meeting the challenges of the 2020s and in an efficient and agile way, keying into a five yearly process. What's not to like?
Robbie Owen is a partner and head of infrastructure planning and Jan Bessell is a strategic planning adviser at Pinsent Masons.