This update highlights what we consider to be the most interesting and topical events during the past month within the Nationally Significant Infrastructure Projects (NSIP) world, together with our opinions on key issues that matter to our clients.
If you have any questions on anything mentioned in this update, or feedback to share on what you would find useful, please get in touch using the contact details at the end.
1. Consultation launched on Biodiversity Net Gain for NSIPs
Summary
Defra's consultation of 11 January 2022 on "Biodiversity Net Gain Regulations and Implementation" included some initial, high-level, indication of the proposed application of biodiversity net gain (BNG) to the NSIP regime.
For a helpful summary of the BNG requirement under the Environment Act 2021, including in relation to NSIPs, see our recent blog post.
Key facts
- The consultation is seeking views on the core policy for BNG as it applies to NSIPs.
- Proposes 10% as the minimum requirement, but seeks views on any necessary targeted exemptions.
- Proposes a single "core" statement to bring forward the BNG requirements for NSIPs, to then be integrated into the relevant National Policy Statements upon their next review.
- Proposes November 2025 as the point at which BNG is to apply to NSIPs which are accepted for examination (subject to certain exemptions).
- 30 years to be the minimum maintenance period.
- The consultation closes on 5 April 2022, and the detail and specific wording of the requirement for NSIPs will be subject to further consultation.
Further analysis
Extending the BNG requirements to the NSIP regime was a reasonably late addition to the Environment Act 2021 and so this initial consultation on its proposed measures and practical application is helpful.
The intention to provide a single "core" statement, as opposed to bespoke statements for the range of NSIP sectors is interesting. It should provide greater certainty on timings/the parameters of the initial requirements (assuming Defra "own" the initial statement); however, it may prove challenging (despite the consultation request) to allow for nuance across the sectors, which may be desirable/appropriate considering the wide variance of project types/land takes. It will also be interesting to see how the proposed publication of the BNG statement interacts with the existing reviews under way for the extant National Policy Statements, and indeed the draft Water Resources NPS which is still to be designated.
In the context of the proposed minimum 10% BNG requirement, the "Financial and Economic Appraisal for Major Infrastructure Projects" published alongside the consultation found that "the predicted costs of achieving 5%, 10% or 20% BNG outcomes for six major infrastructure projects is equivalent to around 1% of the capital costs of these schemes". It will be interesting to see if consultation feedback supports this assessment.
The stated intention that the BNG requirement should apply only to NSIPs (limited to terrestrial, or the terrestrial components of such projects) accepted for examination after November 2025, with the BNG statement published at least 2 years before, appears to be a reasonable transitional provision and should avoid any cliff-edge uncertainty. PINS may find themselves particularly busy in the months leading up to that trigger though...
2. Cumulative assessment of climate impacts – what and why?
Summary
A number of National Highways development consent order (DCO) applications have seen the same request for an "assessment of the cumulative effects of Greenhouse Gas emissions from the scheme with other existing and/or approved projects on a local, regional and national level on a consistent geographical scale (for example an assessment of the cumulative effects of the Road Investment Strategy ("RIS") 1 and RIS 2 at a national level)."
Key facts
- The A38 Derby Junctions DCO was originally granted consent in January 2021.
- The decision was subsequently challenged and quashed in July 2021 following an Order of the High Court.
- The Secretary of State (SoS) conceded the challenge on a narrow "reasons" ground, accepting that he failed to provide a reasoned conclusion for his decision.
- A consistent request has then followed across each National Highways DCO application (both those in examination and also before the SoS for determination (or-redetermination)) for information on the scheme's cumulative assessment of climate impacts.
- A number of the corresponding decisions have been delayed as a result.
Further analysis
Within the original Decision Letter to the A38 DCO, in response to a recommendation from the Examining Authority (ExA) that further consideration be given to the cumulative effects of carbon emissions from the project in the context of RIS1 and 2, the SoS noted he was "satisfied that appropriate consideration was taken of the carbon impacts of the RIS programmes during their development and that any impact is not incompatible with the national wide carbon targets and commitments of the Government. The Secretary of State considers that the cumulative assessment of the RIS is a matter for national consideration and as mentioned above, is satisfied that appropriate consideration was given during the RIS's development."
It appears that the subsequent successful court challenge made the SoS reassess that conclusion. The recent requests for further environmental information are clearly an attempt to address this issue and ensure any resultant decision does not follow a similar course to the A38.
Whilst that underlying objective is understandable, the method is perhaps more open to debate. The nature of GHG emissions would seem to pose a challenge to the ability to carry out a meaningful cumulative effects assessment within the confines of an individual NSIP application. There may be some turns still to come on these particular highway applications...
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