On 22 February 2022, the House of Lords is scheduled to consider the Government’s Draft Overarching National Policy Statement for Energy. The document was published and laid before both Houses in September 2021. Lord Callanan, a Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy (BEIS), will lead the debate.

What are national policy statements?

National policy statements (NPSs) guide decision-making for major infrastructure projects in England and Wales. Under the Planning Act 2008, the Government must determine a planning application for significant infrastructure projects in accordance with any relevant NPS unless:

  • The decision would lead to the UK being in breach of any of its international obligations.
  • The decision would lead to the secretary of state being in breach of any duty under other legislation.
  • The decision would be unlawful.
  • The secretary of state is satisfied that the adverse impacts of the proposed development would outweigh its benefits.
  • The secretary of state is satisfied that any condition required for deciding an application not in accordance with an NPS is met.

There are currently 12 ‘designated’ NPSs, each covering different types of nationally significant infrastructure projects. They include six energy NPSs (see below for further details); three transport infrastructure NPSs, covering ports, national networks and airports; two waste infrastructure NPSs, covering hazardous waste and geological disposal infrastructure; and a wastewater NPS. In addition, the Government has consulted on a draft water resources NPS that has yet to be formally designated.

Energy NPSs and proposed revisions

The energy NPSs set out the Government’s policy for the delivery of energy infrastructure and provide the legal framework for relevant planning decisions. The current set were designated in 2011 under the Coalition Government. They comprise:

In its December 2020 energy white paper, entitled Powering our Net Zero Future, BEIS undertook to review the existing energy NPSs. It said:

We have decided that it is appropriate to review the NPSs, to ensure that they reflect the policies set out in this white paper and that we continue to have a planning policy framework which can deliver the investment required to build the infrastructure needed for the transition to net zero. Work on this review will start immediately, with the aim of designating updated NPSs by the end of 2021.

The department suggested this review would be relatively limited, adding that overall “the need for the energy infrastructure set out in energy NPSs remains, except in the case of coal-fired generation”.

On 6 September 2021, BEIS launched a consultation on draft documents to replace the first five energy NPSs. In its consultation document, the department explained that the principal purpose of the exercise would be to seek views on “whether the revised energy NPSs provide a suitable framework to support decision making for nationally significant energy infrastructure”. The consultation would also seek views on accompanying appraisals of sustainability and habitats regulations assessments. The document outlined that the draft overarching NPS (EN-1) would sit above EN-2, EN-3, EN-4 and EN-5, with the appraisals of sustainability and habitats regulations assessments sitting below:

The diagram below illustrates the structure of the package of draft energy NPSs (EN-1 to EN5), and their supporting documents
(Source: BEIS, Planning for New Energy Infrastructure, September 2021, p 9)

The document clarified that “EN-6, which currently sets out the planning and consents regime for nuclear projects deployable before 2025, will not be amended as part of this review”. It added that a “new NPS for nuclear electricity generation infrastructure deployable after 2025 will be developed to reflect the changing policy and technology landscape for nuclear” but did not elaborate on timeframes.

On the review process itself, the consultation document said a systematic review of each NPS had been undertaken to identify “unaligned or out of date” references to the current regulatory or policy framework. After considering whether each NPS should be withdrawn, amended or remain as is, the review process “determined that the existing EN-1 to EN-5 documents should be amended”.

On the new Draft Overarching National Policy Statement for Energy (EN-1) in particular, the consultation document summarised that updates to the draft text included changes to:

  • reflect the current regulatory framework and contain new transitional provisions applicable during and following a review;
  • update the Government’s greenhouse gas emission reductions target from “at least 80%” by 2050 to net zero by 2050, and 78% by 2035 compared to 1990 levels;
  • add flexibility for the applicability of the NPS to new and developing types of energy infrastructure, such as carbon capture and storage and hydrogen infrastructure;
  • confirm future energy generation would come from a range of sources including renewables, nuclear, low carbon hydrogen, with “residual use of unabated natural gas and crude oil fuels” for heat, electricity, transport, and industrial applications; and
  • remove reference to the need for new coal and large-scale oil-fired electricity generation and update references to the need for other infrastructure.

The consultation closed on 29 November 2021. The Government has not yet responded.

Parliamentary scrutiny

The House of Commons Business, Energy and Industrial Strategy Committee is currently undertaking an inquiry on the draft energy NPSs. It has so far published transcripts for two oral evidence sessions and a range of written evidence received from interested parties.

Under the Planning Act 2008, the Government must make a statement setting out its response to any recommendations the committee may make. It must also make a statement if either House passes a resolution on the proposed changes before the end of the parliamentary scrutiny period, which the Government has said will run until 28 February 2022.

Read more

Cover image by Silberfuchs on Pixabay.