Infrastructure Planning Blog

This week’s entry looks at the Nuclear Taskforce’s Nuclear Regulatory Review, data centres and some Heathrow third runway announcements.

More fission when the chips are down

The Nuclear Regulatory Taskforce published its final report on Monday, which follows the interim report published in the summer. It identifies a long list of problems with the current approach to civil and nuclear defence regulation in the UK (risk aversion, process over outcomes, flawed legislation etc.) and calls for an overhaul of the system.

Mustafa Latif-Aramesh of this parish was a member of the Taskforce and closely involved in the production of the final report.

The report makes some 47 recommendations aimed at speeding up delivery, reducing costs, and strengthening safety to support energy security, Net Zero targets, and national defence. Some are quite radical. Chapters 7 and 8 are the most relevant for the planning and environment world. Here is a sample:

• Commission: There are proposals for a new Nuclear Regulatory Commission which would have the power to make “decisions on planning appeals, deciding planning applications made directly to it, and in the event of a recommendation for refusal on an NSIP, automatic referral to the Commission”

• Changes to the process for NSIPs: There are various measures which are suggested in Recommendations 25 to 27 including (1) a recommendation that the relevant Secretary of State make decisions on acceptance; (2) a new ‘presumptive’ pre-examination period with a related suggestion that rejection at the acceptance stage should only occur if there is strong evidence that any deficiencies identified at the application submission stage cannot be remedied within that presumptive pre-examination period; (3) the acceptance test should operate more like a validation; (4) a requirement for continuous improvements of examination time periods; (5) the introduction of a new “Interim recommendation Report” which should flush out large issues, and close others down; and (6) a requirement to issue “minded to” letters in the event of a delay.

• Streamline planning and reduce legal risks: Unmeritorious judicial reviews (JRs) are cited as a major source of project delays and costs. To deal with this, the Taskforce recommends (1) amending the cost cap for JRs (currently £5k for individuals; £10k for organisations and this has not changed since 2010 in line with inflation or otherwise), (2) limiting NSIP JRs to a single bite of the cherry and (3) a government indemnity for nuclear developers against any damages they incur as a result of proceeding with their project whilst a JR is being decided. These go quite a bit further than the Planning and Infrastructure Bill, which only makes relatively modest changes to the JR rules for DCOs (reducing the bites of the cherry from three to two (or one if the High Court decides the challenge is totally without merit)).

• Process over outcomes in environmental assessments: There are a raft of proposed changes to environmental impact assessment, and Habitats Regulations assessment requirements. Some of these endorse Catherine Howard’s recommendations, but they go significantly further: first, the idea of “Modular Low-Carbon Acceleration Zones” which requires SEAs for an area, and then streamlined requirements thereafter and secondly, an alternative pathway to compliance with the Habitats Regulations via nature recovery fund.

• Reinforcing the "one-stop shop" model for DCOs: The report calls for greater streamlining of the regulatory process to eliminate duplication of effort across multiple regulators. It suggests that more consents could be wrapped up as part of a DCO, rather than requiring promoters to obtain certain approvals separately. Environmental permits are given as an example; currently, the standard approach is to obtain those separately, creating extra work.

• Amendments to national policy: There are suggestions to strengthen the CNP (as well as extending it to the decommissioning context), include a new strong presumption for “fleets” of SMRs. There is also a helpful suggestion that the strong policy presumption should be replicated in the NPPF.

• Update siting criteria: The Taskforce also recommends reforming the outdated population density criteria (dating from 1967) that currently restrict potential sites to less populated areas, to reflect the safety profile of modern reactor designs and allow for co-location with industrial clusters. We reported here that the draft NPS for nuclear generation, expected to be designated by the end of the year, continues to require DCO applicants to satisfy the Semi Urban Population Density Criterion (i.e., the traditional approach).

• Reinstatement of the Model Provisions: The report calls for the reinstatement of Model Provisions, with some specific recommendations on what should be included in them, including “Acceptable protective provisions for statutory undertakers which do not, in accordance with government guidance, negate other provisions of the Development Consent Order”.

Some significant and ambitious proposals. The Government has since confirmed its commitment to implementing the recommendations within two years so the full thing is worth a read if you want to know what’s coming ahead. It is filled with a litany of clever suggestions throughout, including on BNG, and community benefits (e.g., “The Government should legislate to confirm the provision of community benefits is a material consideration in planning decisions” has the potential to be a significant shift in curtailing potential objections to new development). Importantly, the section on capacity recommends against charging powers for local authorities (see paragraph 489).

DCOs, aka Data Centre Orders

The Infrastructure Planning (Business or Commercial Projects) (Amendment) Regulations have now been approved by the House of Lords. They can be found here. They still need to be made by the SoS and will come into force the day after they are made.

They are short and sweet. Their effect is to add data centres to the prescribed description of business or commercial projects for the purposes of section 35(2)(a)(ii) of the Planning Act 2008. In other words, data centres will be a kind of project in respect of which the SoS can give a s35 direction for the development to be treated as development for which development is required, provided the SoS considers the project is of national significance. So, really big data centres that need the powers afforded by a DCO (e.g., compulsory acquisition) will have the option of seeking a s35 direction.

There is currently no NPS for data centres, a point which drew criticism from the Secondary Legislation Scrutiny Committee. The Government has stated its intention to publish a draft of the NPS for data centres soon after the regulations come into force (see here). The NPS (a first for business or commercial projects) will set out details of any thresholds and parameters such as size or other relevant factors to determining which projects will be in scope of the policy, as well as relevant policy background including the needs case for data centres.

Prepare for take-off?

The Government this week announced that Heathrow Airport Limited’s third runway proposal will be used as the scheme to progress the project (here). It said HAL’s proposal “offers the most deliverable option and provides the greatest likelihood of meeting the government’s ambition for a decision on a development consent application within this Parliament”.

HAL’s proposal will now shape the review of the Airports National Policy Statement (designated in 2018), which will be subject to consultation next summer (probably 2027 for designation of the updated NPS, in that case).

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