Energy National Policy Statement enters new era in the UK

Planning has been the "talk of the town" in recent weeks, with the government's Autumn Statement on 22 November involving an array of planning updates, including to the energy National Policy Statement (NPS).

The NPS set out the "need case" for different technologies and infrastructure, covering the competing issues that face nationally significant infrastructure projects (NSIPs), while seeking to balance these in the context of granting consent.

Updated NPS

In late 2021, the Department for Business, Energy & Industrial Strategy (BEIS) undertook a consultation for proposed updates to the NPS, which were last published – "designated" – in 2011). BEIS' replacement, the Department for Energy Security and Net Zero (DESNZ), undertook a further consultation on 30 March 2023. Osborne Clarke led the National Infrastructure Planning Association working group in its response to government on the updated NPS. DESNZ finally published the updated NPS alongside the Autumn Statement on 22 November 2023.

The NPS have been considered in NSIP schemes in their draft form for the past two years as "important and relevant" considerations under section 105 of the Planning Act 2008. The impending legal designation of the NPS will provide greater clarity and weight for consideration at the application and consenting stage, while solidifying the position for renewable energy providers.

Transitional provisions

The NPS will only have direct legal effect for development consent applications accepted for examination after the date of designation. This means that the 2011 suite of NPSs will continue to have effect for any application accepted for examination before designation of the 2023 amendments, and the designated NPSs will be left as "important and relevant" considerations (under section 105) for existing applications already accepted by the Planning Inspectorate for England, awaiting examination, in examination or awaiting decision.

Autumn Statement and November changes

With the aim of recognising and resolving the delay in approving infrastructure projects, the reforms were focused on speeding up infrastructure delivery in the near and longer term.

While announcing the finished revisions to the NPS, the Autumn Statement explicitly recognised the decade delay of the NPS. As a result, the government committed to the NPS for energy, water and national networks being reviewed every five years. This is a welcome objective given that, when the original NPSs were introduced in 2011, solar projects over 50MW were not considered viable. Yet as little as four years later, solar development consent order (DCO) projects such as Cleve Hill and Little Crow were being progressed. Similarly, in 2020, the offshore wind sector did not envisage that in the near-term offshore turbines would be more than 400 metres tall, but these are currently being proposed.

There were sweeping changes from 2011, and even from the spring 2023 consultation drafts, with some significant developments put in place.

CNP definition widened

The NPS for energy (EN-1), which focuses on overarching considerations, includes a new and fundamental concept of critical national policy (CNP) infrastructure. This definition has been updated to cover low-carbon infrastructure, which includes:

• all onshore and offshore generation that does not involve fossil fuel combustion for electricity generation;
• all power lines in scope of EN-5 (the electricity networks NPS) including network reinforcement, upgrade works and associated infrastructure for electricity grid infrastructure;
• for other energy infrastructure, fuels, pipelines and storage infrastructure, which fits within the normal definition of “low carbon”;
• energy infrastructure under the NSIP regime and/or under section 35 directions which fits within the normal definition of low carbon (such as interconnectors); and
• lifetime extensions of nationally significant low-carbon infrastructure, and repowering of these projects.

This extended scope recognises the heightened need for infrastructure to meet national security and net-zero aims through clean energy generation. This is a vital recognition for renewable energy technologies. Furthermore, solar will now benefit from technology-specific NPS (EN-3 for renewable energy infrastructure) and be given more weight in the urgent need case, which in turn helps improve the reality of meeting the 70GW by 2035 Government target.

Weight for CNP in the planning balance

The weight to be attached to CNP infrastructure in the planning balance has been strengthened. The need case for CNP will outweigh residual effects in "all but the most exceptional cases".

The NPS does detail some exceptions to this; notably, where there is an unacceptable risk to human health, public safety, defence, irreplaceable habitats, net-zero achievement, offshore navigation or onshore flooding and coastal erosion. However, the strong weight to attach to CNP should help to streamline and simplify the consenting process.

A renewable energy-focused NPS

The impending designation of EN-3 with its focus on renewable energy, including offshore wind and solar puts to bed the recent arguments that have appeared in DCO applications over the weight to be attached to the NPS. There is also substantial new support for emerging technologies including carbon capture and storage and hydrogen where an urgent need has been noted.

Biodiversity net gain

The NPS has pre-empted new biodiversity net-gain requirements, as well as new Environment Act 2021 objectives and includes wording which clarifies that compliance with these legal requirements is essential in the assessment criteria in EN-1 (as well as for specific technologies in EN-2 (for fossil fuels) to EN-5).

The secretary of state is directed to give appropriate weight to biodiversity net gain and environmental considerations in their decision-making process, however such weight is limited where the gains are produced simply to comply with legal requirements (i.e. if the promoter is only proposing 10%).

Softening of stance on coal and oil  

While on first glance it appears a minor amend, the new NPS has removed from EN-1 a previous statement which noted that new coal or large scale oil-fired generation is not consistent with the trajectory of the UK's carbon budgets and transition to net zero. This reflects recent concerns regarding supply and demand stability, but ultimately could be considered a missed opportunity for some in the context of the wider emphasis on renewable energy within the NPS.

Osborne Clarke comment

There are many more significant amends and impacts of the NPS, all of which the government hope will support the drive to net zero. However, the update has raised concerns over the omission of incentives for onshore wind development as part of the wider renewable infrastructure. This remains at odds with the targets and emphasis on onshore wind within the British Energy Security Strategy and fails to conceptualise this renewable energy option as a mature, efficient and low-cost technology.

The inclusion of all renewable and low-carbon energy projects as CNP should help in removing any debate as to the urgent and critical need for this infrastructure in helping to achieve energy objectives, national security and net zero. As to whether this will change anything of substance in the decision making process is up for debate given that the secretary of state is under a legal obligation to refuse consent if the adverse impacts outweigh the benefits of a scheme (that is, regardless of whether or not it can be said to be "CNP"); perhaps the notion of CNP is therefore more a signal of intent.

Nevertheless, there is soon to be (once designated) official and strong national policy backing for these renewable and low-carbon energy projects – particularly for 50MW-plus solar projects which will, for the first time, benefit from express policy support.

Lauren Gardner, a trainee solicitor with Osborne Clarke, contributed to this Insight.