The National Policy Statements were originally designated in 2011. Further to consultation on proposed drafts earlier in the year, revised updates to the Energy National Policy Statements (NPSs) were published on 22 November 2023.
The purpose of the NPSs is to provide guidance to developers and consenting authorities and establish need and set policy in relation to nationally significant infrastructure projects (NSIPs) (as well as other major projects, where NPSs will often be a material consideration). The previous revised draft NPSs were published in March 2023 and were consulted on in the following months. This article will give an overview of amendments made to the NPSs since the drafts which were published for consultation in March. CMS previously published various articles relating to the proposals within these drafts:
EN-1
One of the key introductions from draft EN-1 in March was the concept of developments which are of ‘critical national priority’ (CNP). The urgent need for CNP infrastructure in achieving energy and net-zero goals will generally outweigh any other residual impacts, and EN-1 emphasises that “for projects which qualify as CNP infrastructure, it is likely that the need case will outweigh the residual effects in all but the most exceptional cases”. These exceptional cases include unacceptable risk to public health and safety, among a handful of other things. There is also a distinction drawn between assessments based on policy requirements, such as green belt, and assessments based on strict legal requirements, such as HRA, together with welcome guidance on the continued application of the mitigation hierarchy and the approach to the assessment of residual impacts.
A new section 4.2 has been added to EN-1, which clearly states Government’s conclusion that there is a CNP for the provision of nationally significant low carbon infrastructure. This does not extend the definition of an NSIP for the purposes of the Planning Act 2008, however it clarifies what falls under the ‘low carbon infrastructure’ meaning for the purpose of the NPSs. This includes (among other things) all onshore and offshore wind generation, all power lines within the scope of EN-5, hydrogen storage and pipeline infrastructure, multi-purpose interconnectors and other infrastructure which is directed to be an NSIP by way of section 35 of the Planning Act 2008. This will be important in the ‘planning balance’ consideration for consenting authorities.
Another point to note within the updated EN-1 is the emphasised Government commitment to providing sufficient guidance on hydrogen NSIPs. It is noted that consideration will be given to the potential value of a hydrogen specific NPS as wider policy develops and the industry progresses.
EN-3
EN-3 remains broadly in line with the draft EN-3 which was published for consultation in March.
However, one key amendment is the policy acknowledgment of the British Energy Security Strategy’s commitment from earlier in the year, to implement an ‘Offshore Wind Environmental Improvement Package’ (OWEIP) with the aim of streamlining the consenting process and reducing the time it takes to obtain consent. One of the key points of the OWEIP, as highlighted in the updated EN-3, will be that the Habitats Regulations and MCZ will be revised specifically for offshore wind, in order that compensation measures can be delivered “while maintaining valued protection for wildlife”. It is not yet clear how the OWEIP will progress however updated EN-3 notes that various elements of this will be subject to public consultation and more detailed guidance is expected in due course.
EN-5
As noted above, one of the key progressions in updated EN-5 is that all power lines and grid infrastructure within the scope of EN-5 will be classed as CNP, although it is worth noting that simultaneously greater emphasis is given to the application of the mitigation hierarchy for development. This will come as a welcome development for networks developers due to the growing demand for additional capacity across the national grid.
A key part of the increase for demand in transmission infrastructure unsurprisingly comes with further emphasis in updated EN-5 for strategic network planning and co-ordination across developments. EN-5 emphasises that “a more strategic approach to network planning will ensure that network development keeps pace with renewable generation and anticipates future system needs”. Further to this, it is noted that even where developments have progressed through inclusion within strategic network design, “opportunities for subsequent local co-ordination between projects, irrespective of whether they have been through those exercise, should be considered in project development”.
Transition
The updated NPSs have not yet been designated. They will only have direct legal effect for NSIP projects which are accepted for examination after the date upon which they are designated. For the time being, the original 2011 NPSs will continue to have legal effect for any development consent order applications which are accepted for examination prior to this designation. However, in any event, the updated NPSs will be a material consideration from this point onwards and will likely be given substantial weight by developers within their project assessments and by consenting authorities in their decision-making, in particular with relation to the key points we have outlined above.
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