Infrastructure Planning Blog

This week’s entry digs into the consultation on biodiversity net gain for nationally significant infrastructure projects (NSIPs), looks at the grant of development consent for the M5 Junction 10 project, and updates to the Ports NPS.

Gains

We mentioned last week that the Government had published the consultation on how BNG would be implemented in the NSIP regime. The key headline is that there is a delay to the implementation, with the requirement not coming into place until May 2026. In addition, the Government has said it will be publishing ‘BNG statements’ which will, in due course, be added to the relevant NPSs when they are updated. These statements for different NSIP types may add sector specific examples to provide further clarity on what types of on-site enhancements may be considered significant.

The document contains ‘model text’ which is the subject of the consultation. Here are a few important elements to the proposals.

First, on compulsory acquisition, the document is clear that ‘once BNG is implemented for NSIPs, the availability of off-site units and statutory biodiversity credits will mean that applicants are unlikely to use compulsory acquisition of land, whether on-site at a development or off-site elsewhere, to meet their BNG requirement unless there are exceptional circumstances.’ This is the corollary of the position that for NSIPs (unlike the conventional planning regime) off-site and on-site units are given equal footing in order to ‘ensure that applicants aren’t incentivised to use compulsory acquisition to further expand their scheme boundaries to try and deliver BNG entirely on-site.’

It’s interesting to compare this position to the provision of environmental mitigation generally. A project is able to justify compulsory acquisition for environmental mitigation purposes and, separately, where that land ‘is required to facilitate or is incidental to that development’ (as per s122 of the Planning Act 2008) provided there is a compelling reason in the public interest for doing so. The proposal would mean that establishing a compelling case, where BNG is concerned, is more difficult. It will be interesting to see the development of ‘exceptional circumstances’ in this context: there have been recent projects on which we have advised where large areas of land have been justified for ecological enhancement and compensation.

Second, irreplaceable habitats (e.g. ancient woodland) is proposed to be excluded from the BNG calculation but promoters must ‘make arrangements to minimise the adverse effect of the development on the biodiversity of any irreplaceable habitats on-site’ and a ‘suitable compensation plan must be put in place where there are impacts to irreplaceable habitat.’ This adds layers to, for example, other statutory duties which may apply to the same site (for example, the ‘enhanced duty’ for national parks) – the intention appears to be that this should not lead to double compensation on the basis that ‘decision makers should refer to relevant planning policy and guidance on irreplaceable habitats’ but clarity would be welcome.

Third, there is a section on ‘temporary possession’ where the document sets out that ‘without any adjustment to the BNG policy, this ‘temporary land’ would be included in the pre-development biodiversity value of on-site habitat and would be subject to the 10% BNG requirement’. The document notes concerns about this given the temporary nature of the involvement, and asks “Do you think there needs to be a bespoke policy on delivering BNG where land is temporarily used for construction of NSIP schemes?”.

The answer to this should be a resounding yes. In fact, it cuts across the desire to reduce to compulsory acquisition (of rights, in this case) not to come up with a bespoke regime. This should go further in my view to expressly cover parameters of permanent rights (e.g. for grid connections) so that the flexibility on the overall location is not confused with the actual permanent land take.

Road to growth

The Secretary of State has granted consent for the M5 Junction 10 project, a road development promoted by Gloucestershire County Council. The decision letter is relatively unremarkable, but there are three things worth highlighting.

First, there is an interesting point about the ‘need’ for the project. The Examining Authority thought that the promoter had overstated the need for the project in terms of housing and employment needs established under local policy on the basis that ‘land has not yet been allocated within the Local Plan, its extent, location and infrastructure needs are not yet known and so cannot be relied on to justify the need’ for the project. The Secretary of State disagreed, mainly because the National Networks NPS establishes the need (hurrah for the power of NPSs) but also because ‘While she agrees with the ExA that the safeguarded land cannot be relied on to support the need case for the Proposed Development, she disagrees with the weighting recommended by the ExA’ on the basis that it would in fact support the future aspirations of local development of ‘much needed housing and employment development’.

Second, the compulsory acquisition period was limited to 3 years (rather than the standard 5 years) ‘so that it aligned with both the Applicant’s stated build programme and the availability of the HIF Funding’ but the Secretary of State goes onto state that ‘the three-year time limit for the exercise of compulsory acquisition powers is calculated on the basis of the conclusion of any legal challenges under section 118 of the Planning Act 2008’. Incidentally, I think there is a lot of confusion about when compulsory acquisition periods run from, see section 5B of the Compulsory Purchase (Vesting Declarations) Act 1981 (and the usual amendment made to it, even in this DCO, in article 28(6)).

Third, on noise, there were some receptors above the “Significant Observed Adverse Effect Level” on a particular area (Stoke Road). The promoter was, separately from the DCO, pursuing a speed limit reduction scheme. The Secretary of State interestingly considered ‘whether it is necessary to secure mitigation by requirement but, given the advanced stage of the traffic calming scheme, does not consider requirements within the Order are necessary’. More broadly, ‘noise effects would be felt by up to 238 receptors at night’ so the Secretary of State gave negative weight to the project in this regard.

Harbouring ports

The extant NPS for Ports was designated in 2012 and is therefore old. The changes proposed within the revised version are mainly concerned with reflecting changes in circumstances and advances in policy since 2012, particularly in the field of green energy and renewables, which make the need for increased capacity at ports even more compelling. Offshore wind dominates; at section 2.3.4, the NPS says that "The Government is committed to radically increasing deployment of offshore wind as a core part of our mission to make Britain a clean energy superpower"; and at section 2.3.5 that "there will be .. a large increase in demand for port capacity needed to provide installation, operation and maintenance facilities for this scale of deployment".

There is no presumption in favour of development at one location more than another, although at section 2.3.22 the NPS does recognise the importance of offshore wind farm projects to Freeports ("it is especially important that large weight be given to the national benefits that are expected, and to the need to facilitate wider Freeport development").

It's also worth noting that the 2012 NPS applied to England and Wales. Under the Wales Act 2017, Government devolved responsibilities for ports to Welsh Government, so the updated version will only apply to England and reserved trust ports in Wales (the only one is Milford Haven). The Government has also said that mandatory marine net gain is currently being development by Government, which will provide guidance in due course (section 3.7.6). The changes to assessment principles in section 4 are extensive but largely about catching up with legislative changes since 2012.

For now, noteworthy is that it’s a little strange that the documents doesn’t currently extend the “Critical National Priority” status to ports given the full-throated needs case at the front end. In addition, the draft NPS states: “the applicability of this NPS [to projects directed in via section 35] will be determined on the facts in the light of the judgment in the ‘Wheelabrator’ case, possibly requiring the eventual decision to be made under s.105 PA08 rather than s.104”. The Wheelaborator case is, in my view, rested on a distinction between “projects of national significance” and “nationally significant infrastructure projects” that is not intended by the Planning Act 2008 (your guess is as good as mine about any such distinction). This statement is a stark contrast to other NPSs (e.g., EN-1 states “EN-1, in conjunction with any relevant technology specific NPS, will be the primary policy for Secretary of State decision making on projects in the field of energy for which a direction has been given under section 35”). Note too that the Secretary of State has the power to direct NPSs apply under section 35ZA(5), as they have done on previous section 35 directions.

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