Dragging infrastructure planning into the 21st century
Nowhere, says the government, is decisive reform needed more urgently than in the planning system. This is a notion that will ring true for those involved in the consenting and delivery of major infrastructure, be they developers, decision makers or affected parties.
The government’s consultation on its proposed amendments to the National Planning Policy Framework (“NPPF”) makes some key proposals in connection with infrastructure planning, including:
- A new focus on using planning to support the development of key modernised industries such as data centres, gigafactories and laboratories, including whether these projects could be brought within the nationally significant infrastructure project (“NSIP”) regime.
- Bringing onshore wind and other renewables back in from the cold – key, as they are, to achieving commitments to reach net zero.
- Recognising the importance of infrastructure development to achieving sustained economic growth, seeking views beyond the NPPF on whether the NSIP regime should be reformed even further to address concerns over water supply resilience.
Read on for more details.
NSIPs to go digital?
Given the political tumult of recent years, it was no surprise that the new Chancellor used her first full day in the office to set out the importance of ensuring the UK remains a stable place for business to invest.
Infrastructure planning reform is expected to be a key part of the foundation for this. The first article in this series explored how both plan-making and decision-taking are to be reformed to set expectations about planning for and achieving the delivery of high tech and digital infrastructure such as laboratories, gigafactories and data centres.
The consultation also looks beyond the 1990 Act planning system and seeks to test whether certain digital infrastructure projects could be brought within the NSIP regime to benefit from the streamlined consenting process under the Planning Act 2008.
Where development projects are within the main fields of infrastructure covered by the 2008 Act but do not qualify as an NSIP development, the relevant Secretary of State may direct a project into the 2008 Act regime (known as a “section 35 direction”). Projects directed into the NSIP regime are usually of a substantial size or importance or have a significant economic impact.
Such is the importance placed by the government on digital infrastructure projects, the consultation seeks views on whether the relevant Secretary of State should be given the power to make section 35 directions in respect of data centres, gigafactories and laboratories (where they meet certain requirements), bringing them into the NSIP regime.
On the face of it, allowing developers of digital infrastructure projects to seek to opt in to the NSIP regime is positive. Any move toward increasing the certainty of decision-making and expediting decisions on critical infrastructure is to be welcomed. If implemented, however, the effectiveness of this proposal will stand and fall on the success of the government’s promised wider reforms to the NSIP system and, in particular, whether or not the Planning Inspectorate and statutory consultees are given the resources to deal with the increased number of NSIP applications they may need to handle.
A further challenge – which previous governments have failed to overcome – will be keeping national policy statements up to date with these emerging technologies. The requirement to review these statements every five years already exists, but the will to do so has, to date, been lacking. Progress in digital infrastructure will come thick and fast – the policy framework will need to keep up.
Reforms to onshore wind, solar and revised NSIP thresholds
The consultation proposes significant reforms to plan-making and decision-taking for renewables development, with particular attention paid to onshore wind – a bête noire of the previous Conservative government.
Ed Miliband, the new Secretary of State for Energy Security and Net Zero, used his first day in his department to issue a written policy statement on onshore wind which removed with immediate effect the de facto ban on onshore wind development in England which has been in place since 2015. The consultation draft NPPF is amended to reflect those changes. Our summer round-up of infrastructure planning covers the background in detail (alongside some other essential reading!).
At the same time, we were promised a consultation on re-integrating proposals for onshore wind development back into the NSIP regime, and the consultation document seeks views on just that.
It also proposes changes to the threshold at which onshore wind and solar projects become NSIP development. When the 2008 Act came into force, onshore wind and solar projects with a generating capacity of more than 50MW would be NSIPs. The government has recognised, however, that technological advancements and efficiencies over the last 15 years mean that cheaper and smaller-scale onshore wind and solar projects breach the 50MW threshold. This has, in some cases, caused market distortion, with many proposals being capped just below the threshold to avoid determination through the NSIP regime.
On this basis, the government proposes to set the threshold at which onshore wind projects fall within the NSIP regime at 100MW (equal to the current threshold for offshore wind) and increase the threshold at which solar projects become NSIPs to 150MW.
This drive for proportionality could encourage the delivery of greater capacity on smaller sites without proposals being artificially “throttled” based on consenting regime. It would also leave the Planning Inspectorate to channel its scarce resources to determining only those projects that are “true” NSIPs. There is, though, some risk that larger projects which do not meet the revised NSIP thresholds could come unstuck in cases where the determining local planning authority does not share the government’s enthusiasm for onshore wind and solar.
Improving water supply resilience
Water supply resilience and the travails of the water undertakers feature regularly on the business pages of the newspapers, and the government is alive to how the planning system can provide greater certainty to undertakers in the delivery of new strategic water infrastructure.
Government proposes to expand the range of water infrastructure NSIPs to include projects designed to keep water in reserve to be supplied during droughts, infrastructure constructed, maintained or operated by a third party on behalf of a water undertaker, water recycling facilities and infrastructure to transfer treated drinking water.
What’s next?
As you’ll have seen from the previous articles in this series, the consultation closes on 24 September 2024. With a significant volume of responses expected, the government will have its work cut out if it is to publish a revised NPPF before the end of the year, as promised.
The reforms to infrastructure planning proposed in the consultation – notably the mooted changes to the nature and size of NSIP developments – are trailed as “one of the first steps” in the government’s plans to reform the NSIP regime to expedite critical infrastructure delivery. Further measures are expected in the forthcoming Planning and Infrastructure Bill announced in last month’s King’s Speech.
As ever, if you have any questions on the government’s proposed reforms to the planning system, please do get in touch with your usual Hogan Lovells planning contact.
Authored by David Wood, Robert Gowing and Rosie Shields.
