The future of water resources infrastructure

More than four years after it was issued for consultation, the government has released the first National Policy Statement for Water Resources Infrastructure. The government has stated that ‘the National Policy Statement (NPS) aims to:

• streamline the planning permission process for nationally-significant water infrastructure projects
• enable new water supply infrastructure
• provide planning guidance for applicants’

The NPS will be used by the Secretary of State to consider development consent applications for nationally significant water resource infrastructure projects. Whether or not a project fits within the development consent order (DCO) regime, rather than the ordinary planning system (where an application is made to a local planning authority) depends on whether it meets the criteria for nationally significant infrastructure projects (NSIPs) set out in sections 27, 28 and 28A of the Planning Act 2008. The criteria include that the development or construction of a project will be carried out by one or more water undertakers.

A water company can apply to have a project treated as a NSIP, even though it doesn’t meet the criteria, under section 35 of the Planning Act 2008. If the project is treated as a NSIP under section 35, the provisions of the NPS will apply. If a project is not a NSIP, the NPS may be treated as a ‘material consideration’ by the local planning authority - whether or not it is will depend on the facts.

Water resources management plans

Water resources management plans (WRMPs) continue to be of key importance.

All water companies have a statutory obligation to prepare and maintain WRMPs, which set out how companies will manage demand and develop water resources so that they can meet their water supply obligations.

As set out in the NPS ‘Water resources management plans are also developed in line with regulators’ guidance. Water resources management plans look ahead for at least the next 25 years and are comprehensively revised at least every five years. They are also subject to annual review to make sure they are maintained….

Water resources management plans and the schemes identified as preferred options in them are subject to important statutory environmental assessments including a Habitats Regulations Assessment and Strategic Environmental Assessment. The Strategic Environmental Assessment is fully integrated into the water resources management plan process from the earliest stages. These assessments support the process for identifying the most appropriate options to be included in a final water resources management plan.’

A key point in relation to WRMPs is that if a NSIP is included in a final WRMP, the ‘need’ for that will have been demonstrated. Therefore, the application for a development consent order will not need to deal with the ‘need’ for the project. If a section 35 direction (to treat the project as a NSIP) is made for a project that is not in a WRMP, the applicant will need to make the case for the need for the project.

What is the impact of the NPS?

As set out in the NPS, ‘The pressure on our water resources is increasing due to:

• population growth
• the impacts of climate change
• the need for sufficient water in our watercourses, lakes and wetlands to enhance biodiversity and protect the environment'

The NSP gives water companies clarity on the approach to planning for significant water infrastructure projects. A key focus is the building of resilience - increasing supply, whilst protecting habitats and the environment.

TLT has extensive experience in advising on planning matters, including nationally significant infrastructure projects and development consent orders. If you would like to discuss any point arising from this article, please get in touch.

Contributors: Katherine Evans and Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2023. Specific advice should be sought for specific cases. For more information see our terms & conditions.