In November 2018 the Department for Environment Food & Rural Affairs (Defra) published a draft national policy statement (NPS) for water resources. The document provides a framework for decision making on applications for Nationally Significant Infrastructure Projects (NSIPs) for water resources in England. The draft was produced following consultations in 2017 and 2018 concerning the content of the NPS and the types and sizes of infrastructure that the NPS will apply to. Defra is seeking consultation responses on the draft NPS by 31 January 2019.
Our previous article provides a helpful explanation of the role of NPSs and NSIPs in the planning regime, and sets out the recent changes made to the Planning Act 2008 (which came into force on 9 January 2019) with regards to the type of water infrastructure that would be categorised as a NSIP.
What does the draft NPS say?
The draft NPS follows a classic approach in four sections. The first of these is a general introduction, setting out the scope and applicability of the NPS, including its relationship with other regimes. The second part describes government policy and the need for water resources infrastructure. Parts 3 and 4 then provide assessment principles and generic impacts, including specific advice on the applicant’s assessment, decision making and mitigation by topic.
The NPS will apply to England only. Not only will it be central to applicants and decision making in the DCO regime, but it may also be a material consideration at local planning authority level. The NPS provides guidance to potential developers on the relevant infrastructure, generic impacts and general siting considerations that may need to be taken into account when planning for the development of water resources infrastructure. It is intended to streamline the planning process for eligible infrastructure.
The key provisions of the draft NPS are summarised below, including details of the government’s consultation paper.
The need for infrastructure
The draft NPS sets out the need for water infrastructure in light of population growth, economic growth and climate change. The document identifies an immediate need to build resilience into the water sector to address pressures on water supplies. It is expected that England will face a water deficit of 8-22 per cent of total water demand by the 2050s and the NPS seeks to address this by committing to a 'twin track’ approach to managing water resources. This involves:
- providing new water resources infrastructure
- taking action to reduce the demand for water.
The document highlights the role of water resource management plans (WRMPs) in identifying and meeting water demand on a long-term basis (more on this below).
What types of development are covered by the NPS?
The draft NPS focuses on three types of water resources infrastructure (which are taken from the criteria set out in sections 27, 28 and 28A of the Planning Act 2008):
- Reservoirs (schemes that will hold back at least 30 million cubic metres or provide at least 80 mega litres per day of deployable output) – these provide the ability to conserve water for later use, and therefore offer plenty of potential for managing water supply.
- Water transfers (for the transfer of water equal to or exceeding 80 mega litres per day deployable output) – these could help to balance the water surpluses in the North and Southwest of England and the deficits in the South and East by improving connectivity between these areas. The government expects neighbouring water companies to work together when planning resources.
- Desalination plants (designed to deliver a deployable output of at least 80 mega litres per day) – desalination is the process of treating saline or brackish water so that it meets drinking water standards. This has the potential, in theory, to provide ‘unlimited’ water supplies. As the process does not rely on rainwater it is also resilient to climate change and droughts.
What is the role of WRMPs?
Water undertakers are under a statutory duty to produce water resource management plans (WRMPs) on a five-yearly basis. These WRMPs are forward-looking and set out how it is proposed the undertakers will manage and develop water resources in order to meet supply obligations.
The draft NPS states that decisions will be made on what additional water infrastructure is required on a local, regional and national scale through the preparation, consultation and finalising of the WRMPs. The latest WRMPs have been drafted and are either being consulted on or have been finalised and are with the Secretary of State for approval. Ostensibly the draft NPS is not site-specific. However, it states that the need for a project in a final approved WRMP is to be treated as established and cannot be re-examined in the Examination of a DCO application. This appears to create a new category of NPS between those (like nuclear and waste water) where specific projects were addressed in detail in the NPS and those where specific projects are identified and assessed under a different statutory process but not considered in detail in the NPS. The linkage between the NPS and WRMP processes is a specific consultation. Water companies are required to review and report to Defra on their plans annually and the draft NPS advises that, before applying for development consent, a developer should consider whether it needs to revise or update its WRMP.
Assessment principles
There will be a presumption in favour of granting development consent for water resources NSIPs that fall within the need for infrastructure established in the NPS, subject to the policies set out in the draft NPS. The Examining Authority (the Planning Inspectorate) and the Secretary of State will, in considering development consent applications, take into account potential benefits and adverse effects of proposed developments as well as ‘the manner in which benefits may be secured and confidence in their delivery’. The principles against which applications for development consent will be assessed relate to the design, environmental, health, safety and security aspects of the types of infrastructure covered by the NPS.
The draft obliges applicants to submit a statement on how environmental enhancement has been incorporated into the detailed design and relevant operational aspects. It highlights the potential for ‘environmental net gain’ but is vague as to its precise meaning and what weight it should receive is a formal test for the decision maker.
Construction and operational impacts
The draft NPS considers the potential construction and operational impacts of each identified type of water resources infrastructure on factors such as air quality, biodiversity and carbon emissions. It also identifies potential mitigation measures to address negative impacts, and enhancement measures to promote biodiversity and nature conservation. The document sets out the information that development consent applicants are expected to provide relating to their own assessments, and guidance for the Secretary of State's decision making process. The NPS indicates that the information used to prepare the WRMPs is likely to be helpful in producing any further details required for specific projects.
Appraisal of Sustainability and Habitats Regulations Assessment
The draft NPS is supported by an Appraisal of Sustainability and a Habitats Regulations Assessment. Defra intends for these to be read alongside the NPS as a 'package of evidence presenting the need and considerations for water resources infrastructure.' As the draft NPS does not itself specify locations, timings or scale of developments, the assessments provide a fairly general view of the sustainability effects of implementing the draft NPS and the likely significant effects on European designated nature conservation sites. Additionally, the WRMPs will be required to undergo Strategic Environmental Assessments and Habitats Regulations Assessments and once schemes are progressed, each project is likely to require further detailed environmental assessment.
Consultation
Defra opened a consultation on the draft NPS on 29 November 2018, with the aim of finding out 'whether the draft NPS provides an appropriate and effective framework for the Examining Authority and the Secretary of State to examine and make decisions on development consent applications for nationally significant water resources infrastructure in England.' The consultation will close on 31 January 2019.
Alongside the consultation, the draft NPS has been laid before parliament for consideration and the final NPS is intended to be designated later in 2019.
How can we help?
We are members of the National Infrastructure Planning Association working group responding to the consultation. We regularly advise on all aspects of water law and have successfully promoted numerous NSIPs, including the first to include reservoirs controlled under the Reservoirs Act 1975 (as part of the only pumped hydro storage DCO to date). Please contact Julian Boswall or Jen Ashwell for more information.