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What is the potential impact of the NIC’s infrastructure planning review?

Earlier this month it was revealed that the National Infrastructure Commission (NIC) has been asked by the government to provide recommendations on the infrastructure planning system and in particular the role of National Policy Statements (NPS).

So, what impact could the review have?

Chancellor Jeremy Hunt and minister for local government and building safety Lee Rowley have asked the NIC to undertake a review of the planning process for infrastructure as the government plans to publish an “Action Plan” relating to Nationally Significant Infrastructure Projects (NSIPs). The organisation will look at the effectiveness of the current five-year review cycles for NPSs and how these strategic statements could provide more confidence in likely planning system outcomes.

The current planning framework for NSIPs dates back to the Planning Act 2008. The Planning Inspectorate is responsible for the administration of NSIP applications on behalf of the secretary of state, who makes the final decision on whether to grant or refuse the application. According to the government, the current system initially helped to speed up the consenting process, but that “the system has slowed in recent years, with the timespan for granting development consent orders (DCOs) increasing by 65% between 2012 and 2021″.

BDB Pitmans infrastructure planning partner Angus Walker highlighted the 65% timespan increase as a key element of the review but added that this is, in fact, not primarily due to NPSs.

“The document says that the timespan for granting DCOs has increased by 65% between 2012 and 2021, but what it doesn’t reveal is that it is secretary of state decision-making delays that are the sole culprit for these increases,” he said. “Ironically the Norfolk Boreas project is given as an example of projects speeding up, when in fact it was one of the most delayed under the new regime.

“While it is possible that arguing over policy during application examinations may indirectly cause delays because other issues are displaced and have to be sorted out later, the main impact of out of date NPSs is actually an increase in post-decision High Court challenges, which slows the system down in a different way.”

There have been a number of recent challenges to planning decisions in the High Court. Earlier this month, a legal challenge lodged by campaign group Transport Action Network (TAN) against National Highways’ £950M A428 Black Cat to Caxton Gibbet scheme failed.

TAN lodged the challenge in October last year and National Highways subsequently confirmed that construction of the road project would be delayed.

A High Court judge has now reviewed the application and refused permission for a judicial review on all three grounds. TAN challenged the scheme “on the grounds of biodiversity, need for the scheme and climate change”.

Meanwhile, former transport secretary Grant Shapps’ decision to approve the Stonehenge Tunnel scheme against the recommendations of planning officials was overruled by the High Court in July 2021.
The hearing to scrutinise the planning approval of the £1.7bn road scheme took place after a legal challenge brought by campaign group Save Stonehenge World Heritage Site (SSWHS). Shapps had given the scheme the go-ahead in November 2020, overruling planning officials who said the project would cause “substantial harm” to the Stonehenge site.

However, the High Court ruled that the planning approval was unlawful, effectively quashing the development consent for the road project. New transport secretary Mark Harper has inherited the dubious task of “re-determining” the planning application for the project.

In the energy sector, former business secretary Kwasi Kwarteng’s decision to refuse planning permission for the £1.2bn Aquind Interconnector between England and France was overturned in the High Court last month.

Kwarteng ruled against the proposals in January 2022, stating that the “adverse effects” of the scheme “weigh against the proposed development”. These effects include the possible delay of the North Portsea Island Coastal Defence scheme due to the overlapping of construction compound areas.
However Aquind subsequently challenged the decision in the High Court after being granted a judicial review. Following the verdict, the project is expected to be referred back to current business secretary Grant Shapps to make a final decision.

Also last month, the proposed expansion of Bristol Airport was given the green light following a legal challenge.

Campaign group Bristol Airport Action Network (BAAN) mounted a legal challenge against the plans in the High Court in November 2022, but the High Court has now ruled that the expansion can go ahead.
Aviation Environment Federation (AEF) director Tim Johnson has previously emphasised what the AEF sees as a flawed decision making process, based on outdated policies.”We have criticised relying on the Airports National Policy Statement and Making Best Use because both documents were issued prior to net zero legislation coming into effect,” he told NCE.

The government is currently working on refreshing a number of NPSs. NCE has recently heard from planning lawyers about the need to refresh the National Networks NPS to speed up roads consenting and from Liverpool City Region Combined Authority about the need for a new Energy NPS in order for it to progress with its Mersey Tidal scheme. Refreshes of both NPSs are expected to progress in 2023.

The NIC will work to compile a report with recommendations on how to speed up the consenting process to help deliver essential major infrastructure projects quicker. This will include short term – next 18 months – and long term – next five years – actions that build on other reforms, drawing on insight from the NIC’s engagement with infrastructure operators, investors and representative bodies.


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