On 17 January 2024 the long-awaited new National Policy Statements for Energy (EN-1 to EN-5) came into force.
This is welcome news for promoters of nationally significant infrastructure projects and indeed should be welcomed by everyone with an interest in the promotion and consenting of infrastructure projects. The previous National Policy Statements dated back to 2011 and so were in much need of a substantial update.
The content of the new NPSs has been the subject of much commentary, particularly due to the time it has taken for them to come into force: the first drafts appeared in September 2021, with revised drafts being published for a second consultation in March 2023, so it has taken more than two years from first publication to get the new Statements in place. The Statements are now set to be reviewed every five years, which (if achieved) should ensure that they better reflect evolving policy and legislative changes.
To briefly reiterate just a few of the key provisions of the new Statements, particularly EN-1 (Overarching National Policy Statement for energy) and EN-3 (National Policy Statement for renewable energy infrastructure):
- There is a “critical national priority” (CNP) for the provision of nationally significant low carbon infrastructure. This means there is a policy presumption that, subject to any legal requirements (including under s.104 of the Planning Act 2008), the “urgent need” for CNP infrastructure “will in general outweigh any other residual impacts not capable of being addressed by application of the mitigation hierarchy”.
- Although biodiversity net gain (BNG) is not yet a legal requirement for NSIPs, “Energy NSIP proposals, whether onshore or offshore, should seek opportunities to contribute to and enhance the natural environment by providing net gains for biodiversity, and the wider environment where possible.” In practice this reflects what most promoters have now been doing for some time. EN-1 further states that “Biodiversity net gain can be delivered onsite or wholly or partially off-site.”
- Solar is now covered by EN-3, which will allow decisions on solar DCO applications to be made under s.104 of the Planning Act 2008 instead of s.105. EN-1 states that “a secure, reliable, affordable, net zero consistent system in 2050 is likely to be composed predominantly of wind and solar” and EN-3 confirms that “solar is a key part of the government’s strategy for low-cost decarbonisation of the energy sector”, reiterating the ambition for 70GW of installed capacity by 2035 (compared to approximately 15.5GW at present). This highlights the need for the rapid consenting and deployment of large-scale solar developments.
- In respect of best and most versatile (BMV) land, EN-3 states that “While land type should not be a predominating factor in determining the suitability of the site location applicants should, where possible, utilise suitable previously developed land, brownfield land, contaminated land and industrial land. Where the proposed use of any agricultural land has been shown to be necessary, poorer quality land should be preferred to higher quality land avoiding the use of “Best and Most Versatile” agricultural land where possible.” BMV land is land in grades 1, 2 and 3a of the Agricultural Land Classification. Although this is helpful in confirming that land type should not be a ‘predominating factor’, the promoter’s approach to site selection, including the availability of other non-BMV land in the area, will be important.
In terms of transitional arrangements, any DCO applications that are accepted from now on will be determined by reference to the new NPSs.
For more information on the new NPSs, or to discuss nationally significant infrastructure projects more generally, please contact Katherine Evans or John Arthur.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.