The energy National Policy Statements (NPS) were first 'designated' in 2011 and the Planning Act 2008 provides that, NPSs must be reviewed if there has been a "significant change" in circumstances.
In recent years there had been a number of calls for the NPS to be reviewed in light of changed government policy, not the least the net zero commitment, ending coal power by October 2024, as well as a legal challenge by the Good Law Project.
With the publication of the Energy White Paper in December 2020, the Government announced that a review of the energy NPS would "start immediately", to ensure that they reflect the policies set out in the Energy White Paper and to ensure a planning policy framework fit to support the infrastructure required for the transition to net zero.
Following the Government review announced back in December last year, Department for Business, Energy & Industrial Strategy (DBEIS) has now published a consultation on amendments to its overarching planning framework for energy infrastructure EN-1 and revisions to EN-2 to EN5.
Under the heading 'why we are consulting' in the consultation paper there is a statement that the energy NPS "need to reflect the Government’s energy policy", and a statement that it is seeking views on whether the revised NPS' are "fit for purpose".
This briefing provides an overview of some of the key proposed revisions to the overarching EN-1 and refers to only a number of key revisions in the other draft NPSs. We will be considering the proposed changes to the other draft NPS in due course and in separate briefings.
What are the NPS?
The energy NPSs set out the framework for decision-making on applications for development consent under the Planning Act 2008 for energy Nationally Significant Infrastructure Projects (NSIPs). EN-1 sets out the need case for certain energy infrastructure and general assessment principles, whilst the other five NPSs set out technology specific assessment principles.
EN-1, combined with any technology specific energy NPS where relevant, provides the primary policy for decisions by the Secretary of State and the way in which NPSs guide the Secretary of State's decision making, and the matters which the Secretary of State is required by the 2008 Act to take into account in considering applications, are set out in Sections 1.1 and 4.1 of EN-1.
The NPSs provide the policy framework for the decisions and they provide the legal, policy and technical information which applicants for development consent under the Planning Act 2008 need to consider as applications for development consent for energy NSIPs should be in accordance with the relevant NPSs.
The consultation document confirms that the Government review, commenced at the end of 2020, has determined that the existing EN-1 to EN-5 documents should be amended. Consequently, the consultation seeks views on the published revised EN-1 to EN-5 documents. The consultation also seeks views on the assessments of sustainability and habitats regulations assessments that have been carried out in relation to the revised documents.
The consultation does not include a revised EN-6 (which applies for nuclear projects deployable before 2025), and has concluded that EN-6 "will not be amended as there are no changes material to the limited circumstances in which it will have effect (see the WMS 7 December 2017)". But it is confirmed that, a new NPS for nuclear electricity generation infrastructure deployable after 2025 will be developed to reflect the changing policy and technology landscape for nuclear.
Note also that the Department for Transport has rejected opening a review into the Airports NPS Statement for now.
The revised draft Overarching NPS for Energy (EN-1)
EN-1 is an overarching NPS which sets out, in Part 1, how the suite of energy NPSs will work and explains the framework of existing government policy. It sets out assessment principles and generic impacts applicable to all energy infrastructure in Part 5 and it establishes the need for new energy infrastructure.
The current need for new energy infrastructure is established in the draft EN-1 in Part 3, both in general terms, by looking at the need for energy supply and a diverse mix of electricity generation, and in terms of the need for specific, low-carbon types of energy infrastructure.
The draft EN-1 is amended substantially, to refer to both net zero and the 78% by 2035 emissions target. It states that there is an urgent need for new electricity generating capacity and that analysis shows that a secure, reliable, affordable, net zero consistent system in 2050 is likely to be composed predominantly of wind and solar.
The consultation document states that the "future generation mix will come from a range of sources including renewables, nuclear, low carbon hydrogen; with residual use of unabated natural gas and crude oil fuels for heat, electricity, transport, and industrial applications, (…). Our future energy system will also utilise a range of more nascent technologies, data, and innovative infrastructure projects including CCS, flexibility and green house reduction technologies."
The known technologies that are included within the scope of the EN-1 are stated to be: Offshore Wind (including floating wind), Solar PV, Wave, Tidal Range, Tidal Stream, Pumped Hydro, Energy from Waste (including ACTs) with or without CCS, Biomass with or without CCS, Natural Gas with or without CCS, low carbon hydrogen, large-scale nuclear, Small Modular Reactors, Advanced Modular Reactors, and fusion power plants. The need for all these types of infrastructure is established by draft EN-1 as urgent.
Where other novel technologies or processes emerge during the life of the NPS, which are nationally significant and can help deliver the Government's energy objectives, such contribution should be given substantial weight, states the draft EN-1.
New coal or large-scale oil-fired generation, the draft EN-1 states,"(…) are not consistent with the transition to net zero due to their high specific emissions and so are not included within the need case of this NPS".
The draft EN-1 also acknowledges that different types of electricity infrastructure will be needed and includes an explanation of the need for new generation, network, storage and interconnection infrastructure, alongside energy efficiency and demand-side response measures.
Need for new networks
Significant revisions have been made to the section covering offshore wind and stating that "of particular strategic importance this decade is the role of offshore wind in [the] generation mix" and the 40GW of offshore wind capacity (including 1GW floating wind) by 2030, plus an expectation that there will be a need for substantially more installed offshore capacity beyond this to achieve net-zero by 2050 is noted.
Draft EN-1 notes that as new generation, storage and interconnection facilities are built, electricity networks will be needed that connect these sources of electricity with each other, and with centres of consumer demand. In addition EN-1 notes the need for onshore reinforcement works is substantial, referring to the ESO forecasts including that the transmission network will require substantial reinforcement in East Anglia to handle increased power flows from offshore wind generation.
Draft EN-1 includes the expectation that for regions with multiple windfarms a more coordinated approach will be adopted wherever possible to connecting offshore wind.
In this context it is also significant, as the consultation document states, that the Government have changed their policy on undergrounding in EN-5 (Electricity Networks). Whilst pylon-supported overhead conductors should be the strong starting presumption for new electricity lines generally, this situation is reversed in National Parks and AONBs. In these areas, the strong starting presumption will be that new lines should be undergrounded, unless the harm of doing so outweighs the landscape and visual benefit. The relevant paragraph in the draft revised EN-5 is 2.11.13.
Part 4 of EN-1 covers Assessment Principles and section 4.1, which sets out general policies and considerations, the need case has been strengthened, and emphasis is given to the importance of early engagement by applicants at the pre-application stage with key stakeholders, as well as the importance of good design.
Changes in the draft EN-1 include, more detail regarding environmental principles, new sections on marine considerations and biodiversity net gain, an update on good design and the sections on CCS and Carbon Capture Readiness (CCR) have been updated.
Draft EN-1 notes that although achieving biodiversity net gain is not currently an obligation on applicants, a proposed amendment to the Environment Bill, would mean the Secretary of State may not grant an application for development consent unless satisfied that a biodiversity gain objective is met in relation to the development to which the application relates. The biodiversity gain objective will be set out in a biodiversity gain statement. Normally these statements will be included within NPS but the amendment allows for the statement to be published separately where a review of an NPS has begun before the proposed amendment comes into force. This would be the case with the energy NPS, if the Environment Bill amendments come into force.
Given the strategic importance that draft EN-1 gives to offshore wind in the next decade it is significant that the technology specific draft NPS, EN-3 (2.29.2) states that the Secretary of State will require any consents to include provisions to define the final 'as built' parameters (which may not then be exceeded), so that these parameters can be used in future cumulative impact assessments.
Currently, cumulative impact assessments for ornithology are based on the consented Rochdale Envelope parameters of projects, rather than the 'as-built' parameters, which may pose a lower risk to birds.
Draft EN-3 also states that the Government will look to explore opportunities to reassess ornithological impact assessment of historic consents to reflect their 'as built' parameters. Any ornithological 'headroom' between the effects defined in the 'as built' parameters and Rochdale Envelope parameters can then be released. The Government will also consider the potential applicability of these principles to other consent parameters.
Part 5 of the draft EN-1 sets out the generic impacts which any type of energy infrastructure could potentially have, which includes landscape and visual impacts. Impacts which are limited to one particular technology are only covered in the relevant technology specific NPS. This part has been updated to reflect the latest policies and available guidance documents that are relevant to the range of matters covered.
Changes in the draft text include updates in the following areas, a new section on GHG emissions, jobs and regional / local opportunities from new infrastructure, biodiversity and geological conservation, air quality, coastal change, landscape and visual, and flood risk.
While the review is undertaken, the current suite of NPS (or for nuclear development the position set out in the Written Ministerial Statement of 7 December 2017), remain relevant government policy and EN-1 to 5 have effect for the purposes of the Planning Act 2008. They continue to provide a proper basis on which applications can be prepared, the Planning Inspectorate can examine, and the Secretary of State can make decisions on, applications for development consent.
The Secretary of State has decided that for any application accepted for examination before designation of the amendments to the NPS, the original suite of NPSs should have effect. The 2021 amendments will therefore have effect only in relation to those applications for development consent accepted for examination after the designation of those amendments. (Draft EN-1, 1.6.2).
However, any emerging draft NPSs are potentially capable of being important and relevant considerations in the decision-making process. The extent to which they are relevant is a matter for the relevant Secretary of State to consider within the framework of the Planning Act 2008 and with regard to the specific circumstances of each development consent order application.
What happens next?
The Planning Act 2008 sets out some procedural requirements which apply to a NPS review which include, a sustainability appraisal, consultation and publicity as well as laying before Parliament for consideration and approval.
Before any revised NPS can come 'into force', the Planning Act 2008 provides that, the proposed amendment must be 'laid' before the House of Commons for the relevant period (21 sitting days beginning with the first sitting day on which the amendment is laid) and must be approved by the House before the end of the consideration period.
The Government's stated aim was for designating updated NPS by the end of 2021. The current consultation on the draft NPS closes on 29 November 2021. That makes for a tight timetable for the Government to take consultation responses into account before laying the final revised NPS before the House, but we may expect that revised NPS will be designated and 'in force' in early 2022.
As noted above this briefing provides an overview of some of the key proposed revisions to the overarching EN-1. We will be considering the proposed changes to the other draft NPS in due course and in separate briefings. If you have any questions arising from anything mentioned here or in relation to the other draft NPS please do not hesitate to contact use or your usual WBD contact.