Infrastructure planning blog

This week’s bumper edition covers the Cunliffe Review into the water industry, the Government’s response to its consultation on the National Policy Statement for Fusion, the grant of consent for the Byers Gill DCO project, and looks at two judgments on the consideration of deliverability and yet another case on the ‘enhanced duty’ for national parks and landscapes.

Water we going to do?

The much awaited Cunliffe Review on the water industry and infrastructure has been published. Here are a few key takeaways on their 88 recommendations.

First, the review recommends a single, super-duper regulator which would ‘combine[s] the functions of Ofwat, DWI, and water functions from the EA and NE’. This gets a thumbs up from us: each entity often has its own cultural and institutional practices which may in some cases not actually be helpful to bringing development forward.

Second, is the interesting concept of ‘constrained discretion’. The review notes that ‘some elements of the legislative framework are highly prescriptive and allow the regulators little leeway for discretion… The EA has highlighted that this limits the scope for decisions on trade-offs to be made.’

The solution to this, the Review says, is to introduce a concept of constrained discretion via primary legislation which would be embodied in ‘a set of principles that the regulators and the systems planner should be able to draw on in making regulatory decisions’ and ‘setting criteria whereby the regulator could depart from specific requirements, or allow water companies or other delivery bodies to do so’ so that trade-offs could clearly be taken.

On this point, strategic directions on how to exercise functions should be both granular, and direct. The Review notes that ‘cultural risk-aversion within regulators is a significant determinant’ of issues with the current approach. In part, this relates to a clear institutional practice where hypothetical risks are given primacy at the risk of slowing overall development.

Third, specifically in relation to DCO projects, the Review recommends that the NPS for water should potentially be amended to give water infrastructure Critical National Priority (CNP) status. The Review also ‘supports reducing the scope to bring a legal challenge against an NSIP planning decision in England and Wales.’ Amen, and my view is that the measures in the Infrastructure Planning Bill could go further.

Whilst more indistinct, there is also a recommendation that ‘NISTA should consider how the water industry in England and Wales could move towards standardised practices and further recommend how this could be advanced.’ There are also measures included to ensure water companies are more involved in local plans, and also a proposal to allow a greater use of permitted development rights (though it does not specify exactly how this should be done).

National Policy Statement for Fusion

The government has published its response to the consultation on the National Policy Statement (NPS) for Fusion (EN-8).

The first key takeaway is that the Government will not amend the thresholds to include fusion reactors below 50MW “at this time”, nor will it capture nuclear fusion research facilities on the basis that “over time, local planning authorities will gain the necessary knowledge and expertise on consenting sub-50 MW fusion energy facilities planning applications through the local planning route”. ‘Over time’ in the context of fusion technology, is probably the right caveat.

There is also another clear caveat, and steer, in that the Government says that fusion reactors below 50MW could simply apply for a direction, noting that the ‘proposed EN-8 will emphasise the importance of small-scale demonstrators as precursors to large scale development that have clear national significance.’ Interestingly, the Government is including both thermal and electrical facilities, and ‘the Government intends to amend the Planning Act 2008 to clarify that the MW threshold for fusion’ to that effect. 

The Government has also confirmed having an ‘open-sited’ process, where suitable sites can be put forward by developers (i.e., not site-specific designations like the NPS for Nuclear (EN-6) which applied to nuclear build until 2025). The rationale for this is that ‘identifying sites for future fusion energy facilities [in an NPS] could be unnecessarily restrictive and it would be difficult to apply a standard approach without disadvantaging some technologies and stifling innovation.’ It will be important that any siting criteria follows this same approach, noting that some concerns have been raised about the siting criteria in the draft NPS for new nuclear fission reactors (EN-7).

On that siting criteria, the Government says ‘Brownfield sites will be prioritised for development to minimise impacts to the greenbelt’ but that, for the most part, environmental criteria will be based on the general NPS for energy (EN-1). Importantly, contrary to how EN-6 and EN-7 are drafted, the proposed EN-8 will not specify exclusionary or discretionary criteria because it ‘recognises that describing criteria as discretionary could be misleading, implying that developers are not required to consider these criteria’. It does not appear that there is a separate population density criteria (as is the case in EN-6, and EN-7) but there is a newly proposed ‘emergency planning’ criteria which may fulfil the same purpose.

The Bear Grylls* DCO

Development consent has been granted for the *Byers Gill solar project, and it contains quite a few interesting gobbits.

First, on options appraisals, the promoter had ‘a range of justifications for the removal of specific panel areas, including proximity to residential properties, potential for improved biodiversity outcomes, feedback from statutory consultees and local stakeholders, and access and drainage constraints’ and whilst this ‘could have been more rigorously evidenced in places’, it was perfectly adequate.

Generally speaking, whilst alternatives are relevant to the consideration of reasonable alternatives required in an EIA and in the compulsory acquisition arena, it’s worth noting the tests on alternatives in the NPS itself so far as planning policy is concerned is distinct, and more permissive (see paragraphs 4.3.24-25 of EN-1 in particular). It’s not difficult to see why the Secretary of State made this conclusion in that context.

Second, the DCO includes a requirement (paragraph 12 of Schedule 2 to the made DCO) to deliver 80% biodiversity net gain in habitat units and a minimum of 100% biodiversity net gain in hedgerow units. This was objected to on the basis that 10% is the prospective legal requirement. However, the Secretary of State decided that the statement in the NPS that “the Secretary of State should consider what appropriate requirements should be attached to any consent.. in order to ensure that any mitigation or biodiversity net gain measures, if offered, are delivered and maintained” meant that imposing a requirement was justified.

Some might argue that an assessment is not something which is ‘offered’, and that a requirement to deliver a specific gain based on a potentially different calculation (“using a biodiversity metric approved by the local planning authority”) may be problematic, but the Secretary of State was kind enough to reduce the amount of BNG required by 8% (as compared to the assessment) as a rounding exercise to ‘afford some leeway to account for extenuating circumstances or amendments to the applicable BNG metric’. 

Relatedly, answers on a postcard: does the amendment made by the Secretary of State in Article 31(11) of the DCO to extend the period for temporary possession for the purposes of maintenance by reference to a period approved in a LEMP (which would secure the above mentioned BNG) have the effect of allowing those powers to be used for 30 years?

Third, is the confirmation that in the context of archaeological impacts, preservation by recording heritage assets is not to be regarded as ‘a measure capable of mitigating significant adverse effects, rather than as a best practice measure’, with the Secretary of State citing ‘the position taken by the Secretary of State in made DCOs such as Sizewell C, Gate Burton Energy Park, and Rampion 2 Offshore Windfarm.’

Game, set and match

The High Court handed down a judgment relating to the proposals for the All-England Tennis Club’s expansion proposals in SW19. The proposals would see additional stadiums for use at the annual Wimbledon competition, as well as new open space being laid out. The interesting point to take away from this is about whether the deliverability of a proposed development is relevant in planning terms (i.e., whether some restriction would mean it could not be implemented, and if that is the case, whether it should be considered in granting planning permission).

You’ll recall that a few moons ago there was a judgment which quashed the planning permission relating to the Holocaust Memorial in Westminster on the basis that a historic local Act of Parliament had a restriction on the use of the proposed site. This, in turn, affected deliverability which was not therefore properly considered. Some have over-read that case as suggesting that a statutory restriction will always be a material consideration in preventing planning permission being granted.

In the Wimbledon case, there was a question about whether a similar restriction was properly considered by the Mayor of London when granting permission. The actual existence of the restriction is subject to separate litigation, but the planning officers had presented a ‘precautionary approach’ (where the restriction was assumed to exist) and an ‘alternative approach’ (where it was not).

The learned judge makes clear that ‘there is no rule of law that deliverability will always be a relevant consideration, even if the obstacles to implementation are “apparently insuperable” but that a decision to ‘take account of or give weight to such matters was a matter for the Defendant, impeachable only on classic public law irrationality grounds.’

The distinction between this case and the Holocaust Memorial case was that the restriction (and therefore deliverability) in relation to the latter was relevant due to the weight placed by the decision-maker on “the importance of the need to deliver the Memorial within the lifetime of the Holocaust survivors”. In this case, even though there was a reference to a ‘pressing need’ for stadiums (and strawberries and cream stands) in the developer’s planning statement, the officers were clear that the need was not time-sensitive.

More areas of outstanding national bickering

We’ve given our clear view on the enhanced duty relating to national parks, and national landscapes in Blog 3. For context, the Levelling Up and Regeneration Act 2023 amended the duty which applies to national parks and national landscapes. Previously, the requirement was that the Secretary of State should have ‘regard’ to the impacts on those protected sites. The 2023 Act changed this so that the decision-maker had to “seek to further the purposes” of the relevant site.

As we noted, a number of court cases and decisions have now opined on exactly what this phraseology means. In a sign of how this issue is simply not going away, a further judgment has been handed down in relation to a development of 165 homes.

CPRE, the claimant, alleged that as a result of the new duty, the only decision lawfully open to the local planning authority, in determining the planning application, was to refuse planning permission. The High Court says no, you are completely wrong, what on earth is this claim (I’m paraphrasing).

More particularly, the High Court held that a planning decision is, in essence, a balance in which ‘no single factor is afforded determinative weight’ and that given virtually noting in planning is absolute, you cannot read the new enhanced duty as ‘a legislative intention to displace the essentially evaluative basis for determination of planning applications’ in contrast to more strongly drafted provisions (such as the Habitats Regulations). Helpfully, the judge says that:

“The socio-economic consequences of the Claimant's approach to section 85(A1) of the 2000 Act would be truly remarkable… Will the proposed allocation or development result in some unavoidable harm to the natural beauty of that landscape? If so, [it would suggest that] the proposed allocation may not lawfully be adopted, the planning application may not lawfully be granted, and enforcement action must be taken against unauthorised development. I cannot accept that the section 85(A1) duty, albeit strengthened, can bear the heavy burden of so radical a change in the performance of these statutory planning functions, long since established"

It strikes me that short of further measures on reducing judicial review, modifying duties such as this which form the basis of repeatedly failing challenges would be worthwhile indeed.

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This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.