Following the publication by the Department for Transport of a new draft National Networks National Policy Statement (NN NPS), the House of Commons Transport Select Committee is carrying out an inquiry into the new draft.
The Committee has issued a call for evidence looking, in particular, at whether the new draft NN NPS is likely to be more effective than the current one and how well it aligns with local transport plans and local networks. The Committee is also interested in how effectively the new draft supports net zero, levelling-up and whether the statement of need for different types of network infrastructure is right.
The deadline for evidence is 15 May 2023. Separately, the window for responses of the Department for Transport's consultation ends on 6 June 2023.
The NN NPS is a key document in deciding on applications for development consent (i.e. for a DCO) for heavy rail and major road schemes (on the Strategic Road Network (SRN)) in England.
We hosted a joint seminar with WSP in April and the key outputs from our discussions were:
- 1. Need
1.1 Express statements of a need in a national policy statement are very useful to applicants bringing forward schemes. They avoid the applicant having to establish need on an application-by-application basis and can cut out a lot of Examination time reviewing wider policy and economic drivers. Further, where the national site network (formerly European sites) is materially adversely affected by the development, imperative reasons of overriding public interest need to be established for the development – a clear statement of need for the development is extremely useful to a applicant in demonstrating that IROPI. The position is similar in the case of specific heritage or green belt effects.
1.2 The new draft NN NPS has a general statement that there is 'compelling need' at a strategic level for development of the national networks. Principally to respond to the following challenges:
(a) maintaining network performance – congestion / delay / reduced customer experience all due to population growth and economic growth;
(b) transport as catalyst and driver of growth – a tool for levelling up;
(c) ensuring resilience, including due to climate change impacts;
(d) supporting environment and net zero priorities
(e) maintaining and enhancing safety.
1.3 There are concerns that the needs section remains too discursive - much of section 3 sets out the justification for identifying the need it specified above, with quite a lot of detail, but the status of that content / detail is not clear. Recalling that this is a planning document under the Planning Act 2008, it might benefit from some restructuring so that any specific needs, beyond the overall strategic need, are clearly set out. To take one example: section 3 references connections to ports and airports but this is in the context of explaining what the strategic road network (SRN) does – query why such an explanation is necessary - but although many would argue there is a specific need for better port connectivity that need is not expressly stated in this document.
1.4 More specific statements of the different needs for rail are set out, but again there are some strange qualifications under the heading of Government policy for addressing the need. For example, para 3.76 states that "in all cases, the need for improvements to the rail network, including new rail links, will be balanced against the need to deliver financial stability for the rail sector." How much this qualifies the statements as to need is not clear, and again, it might be best dealt with as part of the business case considerations under the assessment criteria.
1.5 The clearest statement of specific need is in relation to strategic rail freight interchanges (SRFIs) where it is stated that there is a compelling need for an expanded network of SRFIs. Unlike the remainder of the draft NN NPS which is strictly locationally agnostic, the provisions in relation to SRFIs do give a degree of location steer – noting that:
"SRFI capacity needs to be provided at a wide range of locations, to provide the flexibility needed to match the changing demands of the market, possibly with traffic moving from existing Rail Freight Interchange to new larger facilities. There is a particular challenge in expanding rail freight interchanges serving London and the South East.
Consideration should be given to ensuring existing SRFI locations are taken into account when making an application, to ensure that SRFIs are strategically located and thus enable a cross-country network which unlocks the full range of benefits that an expanded network of SRFIs can provide. Whilst there may be a natural clustering of SRFI proposals in the distribution heartland of the nation, consideration should be given to proposals for SRFIs in areas where there is currently lesser provision."
- 2. Active Travel
2.1 The existing NN NPS doesn't mention active travel at all, the new draft NN NPS mentions it many times. It, along with spatial planning and technology are noted as measures to 'impact upon demand for the SRN', i.e., demand management, but the draft NN NPS concludes that such interventions will not be sufficient. This is the same position as was adopted in the existing NN NPS. The new draft NN NPS also reaffirms that the policy is not one of predicting demand and providing for it but rather providing to desired community outcomes, but concludes that such an approach does not offset the need to increase capacity; modal shift does not always mean less road use and can require more road space.
2.2 However, given the recognition given to active travel, requirements on applicants to consider and enhance opportunities for active travel are peppered throughout the assessment criteria in the new draft NN NPS – as part of roads safety, health (and good design), land-use and impacts on local transport networks (see further below).
2.3 To date, some schemes promoted under the existing NN NPS have, by the applicant's own admission, not done as much as they might in terms of providing enhancements for active travel and non-motorised users, but this new emphasis suggests that in future schemes will need to demonstrate a more complete provision.
- 3. Design
3.1 There is a much stronger expanded focus on design on the new draft NN NPS than in the previous version. Design in this context is comprehensive and holistic: including decarbonisation, climate change resilience, quality of life, sense of place and adding value – not just aesthetics. Sole reliance on existing 'in-house' design manuals by applicants will no longer be sufficient. However, this direction of travel has been trailed increasingly heavily in more recent Examinations of national network schemes, for example in relation to the A428 and A303, and so will not come as a surprise.
3.2 On a related point, it will be ever more important for applicants to show their workings in developing designs with clear signposting to national and local design guidance.
- 4. Alternatives
4.1 New draft NN NPS updates provisions on the questions of consideration of (and reporting on) alternatives to the scheme proposed. This follows the successful legal challenge to the grant of development consent for the A303 Stonehenge scheme. It repeats the position in the existing NN NPS that where an options appraisal process has been followed, it should not be necessary to consider alternatives except where the specific requirements for the consideration of alternatives apply under the Habitats Regulations or in relation to National Parks, AONB etc. However, it adds a further acknowledgement that alternatives should be considered:
"in the wholly exceptional circumstances where case law would require consideration of alternatives as the proposed development involves such obvious adverse effects that the possibility of an alternative site or an alternative location within the site proposed by an applicant avoiding such adverse effects becomes a relevant planning consideration." [4.19]
4.2 There is probably no real change to the process that many applicants will need to follow as regards alternatives overall, but it is clear that there may be a far greater need to show workings. Applicants will need to ensure that any optioneering processes are objectively robust and not circumvented. Proper record keeping will be crucial. Of particular note where applicants 'inherit' preferred route options from third parties (for example where they are settled in DfT investment strategies of plans), applicants will want to ensure that those preferred route options were selected thought a robust process that sufficiently considered alternatives and, more practically, applicants will need to ensure that they have access to the necessary documentation of that process.
4.3 On a separate note in the context of alternatives, possible confusion could arise as the draft NN NPS is currently drafted in relation to demand management. As referred to above, the new draft NN NPS states that a range of measures can be deployed to make the best use of all road capacity which may impact on the demand for the SRN, but concludes that such measures will "not be sufficient to address all the challenge of the SRN.". Although the position is not clear, this all suggests that a prudent applicant will demonstrate a consideration of such measures to reduce demand as an alternative to the scheme proposed.
- 5. Existing local networks
5.1 The new draft NN NPS has a much greater focus on the impacts of the new schemes on existing road networks during construction and once operational. The new draft NN NPS includes more direction regarding the need to deliver an integrated transport outcome with a significant consideration of opportunities to support other sustainable transport modes and improving local connectivity and accessibility. Applicants will explicitly need to show that they have addressed any new or existing severance issues or safety concerns that act as a barrier to non-motorised users – that is to say the scheme should leave the situation better than it finds it. (Notably, in relation to road safety, LTN 1/20 on cycle infrastructure design is also expressly referenced).
5.2 Further, of particular interest to local highway authorities:
(a) where national network development would worsen accessibility, there is a strong expectation that such impacts should be mitigated or otherwise reasons given; and
(b) where national network development negatively impacts surrounding transport infrastructure including connecting transport networks, the applicant must take reasonable steps to mitigate these impacts. This could include the applicant increasing the project's scope to avoid impacts and to provide resilience. Where proposed mitigation is insufficient applicants should accept requirements and/or obligations to fund (local) infrastructure or mitigate adverse impacts on transport networks.
5.3 However, local highway authorities may remain concerned that there is no express requirement on an applicant to agree the local transport model with the local highway authority and nothing is set out regarding the often thorny issue of de-trunking of highways, in particular asset condition on hand-over.
- 6. Carbon emmissions
6.1 The new draft NN NPS includes a new requirement for a carbon management plan to be produced by the applicant including:
(a) an explanation of the steps taken to drive down the climate change impacts at each of the critical stages in the project lifecycle;
(b) details of how operational / maintenance emissions have been reduced as much as possible by the use of best available technology;
(c) whether any residual carbon emissions will be offset or removed using a recognised framework;
(d) where there are residual emissions, the level of emissions and the impact of those on national and international efforts to limit climate change, both alone and where relevant in combination with other developments at a regional or national level, or sector level, if statutory sectoral targets are developed and come into force.
6.2 This goes further than the requirement in the existing NN NPS only to provide evidence of the carbon impact of the project and an assessment against the Government's carbon budgets.
6.3 Further, "applicants should look for opportunities within the design of the proposed development to embed nature-based or technological solutions to mitigate, capture or offset the emissions of construction". (Notably, that does not include emissions from operation.) Applicants have to provide a 'Greenhouse Gas Reduction Strategy' secured through the DCO setting out steps taken to minimise, capture and offset emissions in design and construction. (Again, notably not including in operation.)
6.4 The new draft NN NPS simplifies the process in clearly stating that an assessment of a scheme against the national carbon budget is also to be taken as an assessment of the carbon impacts of the scheme against the net zero target in the Climate Change Act 2008, given that carbon budgets are the mechanism by which the net zero target is to be achieved. Many schemes are pressured during Examination to produce carbon assessments against regional and local budgets. Such assessments are arguably of little real value given that (i) are usually no accepted regional or local budgets and certainly none with any statutory status; and (ii) many schemes that are of NSIP status are, in any event, highly likely to be very highly significant when compared to a local budget. It would have been useful for the NN NPS to have clarified that such regional or local budget assessments are not required, or if they are, to have provided some guidance on carrying out such assessments and the weight to be given to them.
- 7. Climate change adaptation
7.1 Worth noting in relation to climate change adaptation is a degree of new focus on nature-based solutions and the need to consider indirect as well as direct impacts of climate change.
7.2 Separately the concept of future adaptation remains in the new draft NN NPS as it was in the existing NN NPS. That is to say that where adaptation measures are necessary, but such measures may have an adverse effect on other aspects of the project or surrounding environment (the example of coastal processes is given), the Secretary of State may consider requiring the applicant to ensure that the adaptation measures could be implemented should the need arise, rather than at the outset of development (for example reserving land for future development). However, the new draft NN NPS goes further to require that in those circumstances, the applicant should: make a case to justify implementing adaptation measures later; set out clearly how the design could be adapted; and have mechanisms in place (such as DCO requirements) for monitoring and implementation of these future adaptation measures.
7.3 It would be useful if the new draft went further again to explain whether or not a need for land for future adaptation, could underpin a compelling case in the public interest for compulsory acquisition in the present and, if so, what would be the most proportionate way to exercise such powers.
- 8. Eors and BNG - A bit too soon?
8.1 In common with the other draft National Policy Statements currently published, it could be questioned whether it would be better to wait until the position on Environmental Outcomes Reports is established rather than including a small re-working of the provisions of Environmental Impact Assessment in this draft NN NPS. This is particularly the case given the lack of a timing imperative for renewing this particular NPS.
8.2 On biodiversity net gain (BNG), usefully the new draft NN NPS gives clarity that the delivery of BNG off site is associated development that can be included in the DCO and by extension that it may be possible to acquire the necessary land compulsorily. However, there are no express statements on that latter point and the dilemma between the need to establish compelling case in the public interest for the acquisition of land compulsorily and the (proposed) availability of a system of BNG credits available for purchase is not dealt with. Generally, the new section on BNG remains rather vague with a lot of points still to be settled as part of the wider considerations of how BNG will apply to DCOs / NSIPs.
- 9. Accessibility
9.1 The new draft NN NPS deals in a little more detail with the Equality Act 2010 and now explicitly references the Public Sector Equality Duty (PSED), but the section doesn't appear to add particularly to those existing obligations. However, in addition to the need to address severance, improvements for the benefit of non-motorised users and requirements for good design to improve accessibility are also referenced as part of ensuring equality.
Partner, Planning and Infrastructure Consenting
Partner, Head of Planning and Infrastructure Consenting United KingdomView profile