Infrastructure Planning Blog

This week’s entry covers the National Policy Statement (NPS) for Nuclear Energy Generation, two High Court judgements and the Planning and Infrastructure Bill latest.

Policy reaction

The Government this week published an updated draft of the new NPS for nuclear energy generation (EN-7) following a consultation earlier this year.  The revised draft can be found here and the consultation response can be found here. It is due to be formally designated before the end of the year after it has been approved by the House of Commons, and usually doesn’t get amended any further. EN-7 will supersede NPS EN-6, which only has effect for listed nuclear projects capable of being deployed by the end of 2025. EN-7 should not be confused with EN-8, which addresses nuclear fusion (EN-7 is about fission) and has not been designated yet.

The response to the consultation undertaken earlier this year has also been published alongside the draft and can be found here.

Only minor changes have been made to the consultation version of EN-7 but there is, in the updated draft, greater emphasis on the weight to be given to the Critical National Policy (CNP) status afforded to low carbon infrastructure, including nuclear infrastructure. Note, for example, that the February draft said that the urgent need for CNP infrastructure will “in general” outweigh residual impacts not capable of being addressed by application of the mitigation hierarchy.  The words “in general” do not feature in the updated draft; similarly, the updated draft makes clear that the need for CNP will outweigh residual impacts “in all but the most exceptional cases”. This goes further than NPS EN-1, including the updated draft EN-1 which Government consulted on earlier this year.  Presumably, these tweaks will be reflected in an updated draft EN-1, when published (date TBC).

Here are some of the key points:

   
•    In addition to traditional large-scale power stations, EN-7 will apply to small modular reactors (SMRs) and advanced modular reactors (AMRs), which are (in the case of SMRs) smaller versions of the traditional light water reactors and (in the case of AMRs) use novel fuels and cooling systems. The intention is that this should increase the contribution made by nuclear fission to providing low carbon electricity.    
   
•    EN-7 will enable developers to identify and promote sites for the deployment of nuclear generation based on EN-7 siting and technical criteria. This contrasts with the approach in EN-6, which designated eight specific locations considered potentially suitable for the deployment of gigawatt scale nuclear power generation. The EN-7 criteria are substantially the same as those used to inform the eight locations in EN-6, so include e.g., population density thresholds (i.e., not building nuclear infrastructure where too many people live), proximity to military activity, flood risk, biodiversity and geological conservation and access to suitable sources of cooling. All of this said, EN-7 specially confirms that “the sites listed in EN-6 as potentially suitable sites continue to have advantages”.    
   
•    EN-7 will have no fixed deadline and will continue to apply until it is withdrawn, unlike EN-6 which only applies to the end of 2025 (n.b., only one of the 8 sites identified in EN-7 , namely Hinkley Point, has actually progressed to construction). This should provide certainty to industry that the policy will be in place for the long term.    

What a privilege

There was an interesting judgement handed down this week in R (Wild Justice) v Secretary of State for Housing, Communities and Local Government, concerning the Planning and Infrastructure Bill and the principle of Parliamentary privilege.

Parliamentary privilege grants certain legal immunities for Members of Parliament to allow them to perform their duties without external interference. It includes freedom of speech and the right of both Houses to regulate their own affairs.

Wild Justice sought to apply for judicial review of the statement made by the (then) Secretary of State for Housing, Communities and Local Government, Angela Rayner MP, on introducing the Planning and Infrastructure Bill into the House of Commons, that the Bill would not have the effect of reducing the level of environmental protection provided by existing environmental law. That statement was required to be made before the Second Reading of the Bill under section 20 of the Environment Act 2021. Interestingly, the Office for Environmental Protection has previously said the Bill will reduce the protections for the environment from those in the existing law on habitats and species (see the OEP’s letter to the Government in May 2025 here).

However, the Court rejected Wild Justice’s claim. It said that the statutory duty to make a section 20 statement was in respect of a proceeding in Parliament covered by privilege. The separation of powers and the need to avoid the risk of interference with free speech in Parliament would be offended if the court were to entertain the claim.

The other notable judgement this week came in Epping Forest District Council v Somani Hotels Ltd.  It can be found here. The High Court dismissed Epping Forest District Council’s claim for an injunction preventing the use of the Bell Hotel in Epping as accommodation for destitute asylum seeks. While finding that the Council had a reasonable basis for alleging that the use was a breach of planning control (i.e., that it was now a hostel, not a hotel for which there was an established lawful use) such that an application for an injunction could be sought, the Court declined to make a declaration that there was any such breach of planning control and was not persuaded that it was just or convenient to grant an injunction. The reasons for that are summarised at para 295 of the judgement.  Para 296 of the judgement is also an important summary of planning principles more generally:

“My conclusion is limited to the determination of the Claimant’s application for an injunction […] It remains open to the Claimant as local planning authority to consider the expediency of taking enforcement action by issuing an enforcement notice. It is also open to the Defendant to reconsider whether it would be appropriate to apply for retrospective planning permission; or to apply to the Claimant for a certificate of lawfulness of the existing use of the Bell pursuant to section 191 of the 1990 Act. Each of those possible courses of action would enable the planning issues raised by this case to be evaluated by the local planning authority, through the transparent and consultative decision-making processes with public participation which apply under the 1990 Act and its attendant regulations”.

Whiff whaff

Finally, the Planning and Infrastructure Bill had its Third Reading in the House of Lords and so will return to the Commons to consider the Lords’ amendments. There are 117 amendments in total (see here); any not agreed by the Commons will go back to the Lords until both Houses agree on the same version, a process known as ‘ping pong’.

Only two amendments were made at Third Reading in the Lords. One was to correct an error but the other seeks to prescribe how Natural England must prioritise the different ways of addressing the negative effects of development on protected species and sites when preparing an Environmental Delivery Plan (EDP). EDPs are the proposed 10-year area-based plans to be developed by Natural England to manage the environmental impact of development via conservation actions to be funded through developer contributions to a Nature Restoration Fund.

The only amendments made in the Lords by non-government peers to survive are two by Lord Banner about when EDP provisions commence, and one by Lord Borwick (which was substituted by a government version) about electric charging point accessibility for disabled people.

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