An updated draft NPSNN was published for consultation on 14 March 2023. My colleague John Arthur, a senior associate in our Planning & Compulsory team, sets out his thoughts on the content below.

With the existing NPSNN now more than eight years old, the updates to the NPS should ensure that decisions on nationally significant infrastructure projects continue to be made by reference to up to date policy statements. This is of particular importance for areas that have been the subject of close scrutiny and legal challenges in recent years, such as carbon emissions. 

The consultation closes on 6 June 2023. The government will then consider the responses and publish a response to the consultation before the new NPS is adopted. That is currently expected to be later in 2023, although it is worthwhile noting that the draft energy NPSs are now going through a second round of consultation. We consider this less likely for the national networks NPS, but it is nonetheless a possibility. What is perhaps more likely is that the adoption of the new NPS will be in early 2024. The government has confirmed that transitional arrangements will be based on acceptance, so projects that are accepted for examination before the new NPS is adopted will be examined and decided by reference to the existing NPS.

Comparing the documents side by side, the changes in the draft NPS are fairly extensive. We pick up on some of the areas of particular interest below.

• There is still a “compelling need” for development of the networks, but this is no longer expressed as a “critical need”. Instead there is a general move away from the previous focus on congestion and overcrowding towards addressing a “range of challenges” that national networks face, including:
  • Maintaining network performance;
  • Supporting economic growth;
  • Ensuring network resilience, including adapting to climate change and technological changes;
  • Supporting environmental and net zero priorities;
  • Maintaining and enhancing safety.
• With regard to carbon, promoters will need to prepare a whole life carbon assessment of their project to measure emissions at every stage of the development. Carbon Management Plans will be required which (amongst other things) will need to explain whether, and if so how, residual emissions will be offset or removed and the impact of any residual emissions on national and international efforts to limit climate change, alone and in combination. In practice this will include an assessment against the government’s carbon budgets, as is currently required, and any regional, local or sector- based budgets or targets. For decision purposes, the draft NPS continues to acknowledge that operational emissions cannot be totally avoided due to the nature of the developments. The draft NPS also re-confirms that for decision making purposes an increase in operational emissions is not of itself a reason to refuse consent.
• The draft NPS is fairly robust on the topic of alternatives, which considering the previous legal challenges on this topic will likely be welcomed by promoters. If an options appraisal process has been undertaken (which it should have!) it should not be necessary to consider alternatives unless there are “exceptional circumstances”, case law requirements (please see our article on the Stonehenge judgment in 2021: Stonehenge road tunnel development consent order overturned (burges-salmon.com)), or there are requirements under existing regulations such as the Environmental Impact Assessment Regulations. Any consideration that is given to alternatives should be “proportionate” and when alternatives are “vague” or “have no real possibility of coming about” they should be given “little or no weight”. We regularly see third parties putting forward suggestions for alternatives to Examining Authorities and Inspectors during examinations and public inquiries, so if retained in the adopted NPS, this policy position will guide promoters in their responses.
• Biodiversity Net Gain (BNG) is also a hot topic for promoters at the moment. The draft NPS says that applicants should “identify and deliver…wider environmental opportunities for enhancements by providing net gains for biodiversity”, which of itself is a fairly significant statement. The draft goes on to confirm that applicants will be required to use the Defra metric to calculate BNG, as most already are. Applicants will be able to deliver BNG onsite or wholly or partially off-site, which allows a useful degree of flexibility, although applicants will need to consider how they can demonstrate that off-site provision (i.e. provision outside the red line boundary for the DCO scheme) is secured. As expected, the draft NPS confirms that a government Biodiversity Gain Statement will set out the concept of BNG for NSIPs. For decision making purposes, the Secretary of State will need to be satisfied that the biodiversity gain objective in the Biodiversity Gain Statement has been met. We await the publication of a draft Biodiversity Gain Statement with interest and expect another flurry of activity when it is published as promoters consider whether, and if so how, it influences their projects.

To offer a view on the title question, the updated draft NPS represents a significant evolution of the current NPS and a shift in focus away from building lots of new infrastructure towards fewer, more targeted interventions and maximising the efficiency and quality of existing assets through alterations and improvements where needed. It will be very interesting to see what the responses are to the consultation and how the government responds, including whether it makes any material changes to the draft prior to adoption - watch this space.